1992)"

J(^lif<L/ jKr^^p^'^^l .^-^//v^, //>-■- '-/J

The
NORTH CAROLINA

IN THIS ISSUE

EXECUTIVE ORDERS

IN ADDITION

Final Decision Letters

PROPOSED RULES
Community Colleges
Economic and Commimity Development
Environment, Health, and Natural Resources
Human Resources
Justice
Nursing, Board of

RRC OBJECTIONS
CONTESTED CASE DECISIONS
ISSUE DATE: November 2, 1992

RECEIVED

NOV 4 1992
LAW LIBRARY

Volume 7 • Issue 15 • Pages 1464-1640

INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMTNTSTRATTVE CODE

NORTH CAROLINA REGISTER

TEMPORARY RULES

TTie North Carolina Register is published twice a month and
contains information relating to agency, executive, legislative and
judicial actions required by or affecting Chapter 150B of the
General Statutes. All proposed administrative rules and notices of
public hearings filed under G.S. 150B-21.2 must be published in
the Register. The Register will typically comprise approximately
fifty pages per issue of legal text.

State law requires that a copy of each issue be provided free of
charge to each county in the state and to various state officials and
institutions.

The North Carolina Register is available by yearly subscription
at a cost of one hundred and five dollars (S105.00) for 24 issues.
Individual issues may be purchased for eight dollars (S8.00).

Requests for subscription to the North Carolina Register should
be directed to the Office of Administrative Hearings,
P. 0. Drawer 27447, Raleigh, N. C. 27611-7447.

Under certain emergency conditions, agencies may issue
temporary rules. Within 24 hours of submission to OAH, the
Codifier of Rules must review the agency's written statement of
findings of need for the temporary rule pursuant to the provisions in
G.S. 150B-21.1. If the Codifier determines that the findings meet
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If
the Codifier determines that the fmdings do not meet the criteria,
the rule is returned to the agency. The agency may supplement its
findings and resubmit the temporary rule for an additional review
or the agency may respond that it will remain with its initial
position. The Codifier, thereafter, will enter the rule into the
NCAC. A temporary rule becomes effective either when the
Codifier of Rules enters the rule in the Code or on the sixth
business day after the agency resubmits the rule without change.
The temporary rule is in effect for the period specified in the rule or
180 days, whichever is less. An agency adopting a temporary rule
must begin rule-making procedures on the permanent rule at the
same time the temporary rule is filed with the Codifier.

ADOPTION AMENDMENT, AND REPEAL OF
RULES

NORTH CAROLINA ADMINISTRATIVE CODE

The following is a generalized statement of the procedures to be
followed for an agency to adopt, amend, or repeal a rule. For the
specific statutory authority, please consult Article 2A of Chapter
150B of the General Statutes.

Any agency intending to adopt, amend, or repeal a rule must
first publish notice of the proposed action in the North Carolina
Register. The notice must include the time and place of the public
hearing (or instructions on how a member of the public may request
a hearing); a statement of procedure for public comments: the text
of the proposed rule or the statement of subject matter; the reason
for the proposed action; a reference to the statutory authority for the
action and the proposed effective dale.

Unless a specific statute provides otherwise, at least 15 days
must elapse following publication of the notice in the North
Carolina Register before the agency may conduct the public
hearing and at least 30 days must elapse before the agency can take
action on the proposed rule. An agency may not adopt a rule tliat
differs substantially from the proposed form published as part of
the public notice, until the adopted version has been published in
the North Carolina Register for an additional 30 day comment
period.

When final action is taken, the promulgating agency must file
the rule with the Rules Review Commission (RRC). After approval
by RRC, the adopted rule is filed with the Office of Administrative
Hearings (OAH).

A rule or amended rule generally becomes effective 5 business
days after the rule is filed with the Office of Administrative
Hearings for publication in the North Carolina Administrative Code
(NCAC).

Proposed action on rules may be withdrawn by the promulgating
agency at any time before final action is taken by the agency or
before filing with OAH for publication in the NCAC.

The North Carolina Administrative Code (NCAC) is a
compilation and index of the administrative rules of 25 state
agencies and 38 occupational licensing boards. The NCAC
comprises approximately 15,000 letter size, single spaced pages of
material of which approximately 35% of is changed annually.
Compilation and publication of the NCAC is mandated bv G.S.
150B-21.18.

The Code is di\'ided into Titles and Chapters. Each state agency
is assigned a separate title which is further broken down by
chapters. Title 21 is designated for occupational licensing boards.

The NCAC is available in two formats.

(1) Single pages may be obtained at a minimum cost of
two dollars and 50 cents (S2.50) for 10 pages or less,
plus fifteen cents (SO. 15) per each additional page.

(2) The full publication consists of 53 volumes, totaling in
excess of 15,000 pages. It is supplemented monthly
with replacement pages. A one year subscription to the
full publication including supplements can be
purchased for seven hundred and fifty dollars
(8750.00). Individual volumes may also be purchased
with supplement service. Renewal subscriptions for
supplements to the initial publication are available.

Requests for pages of rules or volumes of the NCAC should be
directed to the Office of Administrative Hearings.

CITATION TO THE NORTH CAROLINA
REGISTER

The North Carolina Register is cited by volume, issue, page
number and date. 1:1 NXR 101-201, April 1, 1986 refers to
Volume 1, Issue 1, pages 101 through 201 of the North Carolina
Register issued on April 1, 1986.

FOR INFORMATION CONTACT: Office of
Administrative Hearings, ATTN: Rules Division, P.O.
Drawer 27447. Raleigh, North Carolina 27611-7447, (919)
733-2678.

NORTH
CAROLINA
REGISTER

Office of Administrative Hearings

P. O. Drawer 27447

Raleigh, North Carolina 27611-7447

(919) 733-2678

Julian Mann III,

Director
James R. Scarcella St.,

Deputy Director
Molly Masich,

Director of APA Services

Staff:

Ruby Creech.

Publications Coordinator
Teresa Kilpatrick,

Editorial Assistant
Jean Shirley,

Editorial Assistant

ISSUE CONTENTS

I. EXECUTIVE ORDER

Executive Order 178 1464

II. IN ADDITION

Final Decision Letters 1465

III. PROPOSED RULES
Community Colleges

Community Colleges 1535

General Provisions 1531

Miscellaneous Programs 1598

Economic and Community
Development
Banking Commission 1467

Environment, Health, and
Natural Resources

Coastal Management 1507

Environmental Management .... 1487
Radiation Protection Commission . 1520

Human Resources
Social Services Commission .... 1471

Justice

N.C. Alarm Systems Licensing
Board I486

Licensing Boards
Nursing, Board of 1528

IV. RRC OBJECTIONS 1609

V. CONTESTED CASE DECISIONS

Index to ALI Decisions 1613

Text of Selected Decisions

91 EHR 0446 1628

92 DOJ 0130 1632

VI. CUMULATIVE INDEX 1638

NORTH CAROLINA REGISTER

Publication Schedule

(August 1992 - December 1993)

Last Day

Earliest

for Elec-

Date for

Last Day

^Earliest

Issue

Last Day

tronic

Public

Adoption

to Submit

Effective

Date

for Filing

Filing

Hearing

by Agency

to RRC

Date

08/03/92

07/13/92

07/20/92

:i; :A: >!< ;^ >ii: ^ ^

08/18/92

09/02/92

09/20/92

:4c ii< :i: :i: :,£ :i< ^

11/02/92

08/14/92

07/24/92

07/31/92

08/29/92

09/13/92

09/20/92

11/02/92

09/01/92

08/11/92

08/18/92

09/16/92

10/01/92

10/20/92

12/01/92

09/15/92

08/25/92

09/01/92

09/30/92

10/15/92

10/20/92

12/01/92

10/01/92

09/10/92

09/17/92

10/16/92

10/31/92

11/20/92

01/04/93

10/15/92

09/24/92

10/01/92

10/30/92

11/14/92

11/20/92

01/04/93

11/02/92

10/12/92

10/19/92

11/17/92

12/02/92

12/20/92

02/01/93

11/16/92

10/23/92

10/30/92

12/01/92

12/16/92

12/20/92

02/01/93

12/01/92

11/06/92

11/13/92

12/16/92

12/31/92

01/20/93

03/01/93

12/15/92

11/24/92

12/01/92

12/30/92

01/14/93

01/20/93

03/01/93

01/04/93

12/09/92

12/16/92

01/19/93

02/03/93

02/20/93

04/01/93

01/15/93

12/22/92

12/31/92

01/30/93

02/14/93

02/20/93

04/01/93

02/01/93

01/08/93

01/15/93

02/16/93

03/03/93

03/20/93

05/03/93

02/15/93

01/25/93

02/01/93

03/02/93

03/17/93

03/20/93

05/03/93

03/01/93

02/08/93

02/15/93

03/16/93

03/31/93

04/20/93

06/01/93

03/15/93

02/22/93

03/01/93

03/30/93

04/14/93

04/20/93

06/01/93

04/01/93

03/11/93

03/18/93

04/16/93

05/01/93

05/20/93

07/01/93

04/15/93

03/24/93

03/31/93

04/30/93

05/15/93

05/20/93

07/01/93

05/03/93

04/12/93

04/19/93

05/18/93

06/02/93

06/20/93

08/02/93

05/14/93

04/23/93

04/30/93

05/29/93

06/13/93

06/20/93

08/02/93

06/01/93

05/10/93

05/17/93

06/16/93

07/01/93

07/20/93

09/01/93

06/15/93

05/24/93

06/01/93

06/30/93

07/15/93

07/20/93

09/01/03

07/01/93

06/10/93

06/17/93

07/16/93

07/31/93

08/20/93

10/01/93

07/15/93

06/23/93

06/30/93

07/30/93

08/14/93

08/20/93

10/01/93

08/02/93

07/12/93

07/19/93

08/17/93

09/01/93

09/20/93

11/01/93

08/16/93

07/26/93

08/02/93

08/31/93

09/15/93

09/20/93

11/01/93

09/01/93

08/11/93

08/18/93

09/16/93

10/01/93

10/20/93

12/01/93

09/15/93

08/24/93

08/31/93

09/30/93

10/15/93

10/20/93

12/01/93

10/01/93

09/10/93

09/17/93

10/16/93

10/31/93

11/20/93

01/04/94

10/15/93

09/24/93

10/01/93

10/30/93

11/14/93

1 1 /20/93

01/04/94

11/01/93

10/11/93

10/18/93

11/16/93

12/01/93

12/20/93

02/01/94

11/15/93

10/22/93

10/29/93

11/30/93

12/15/93

12/20/93

02/01/94

12/01/93

11/05/93

11/15/93

12/16/93

12/31/93

01/20/94

03/01/94

12/15/93

11/24/93

12/01/93

12/30/93

01/14/94

01/20/94

03/01/94

* 77?^^ "Earliest Effective Date" is computed assuming that the agency follows the
publication schedule above, that the Rules Review Conunission approves the rule at
the next calendar month meeting after submission, and that RRC delivers the rule to
the Codifier of Rules five (5) business days before the 1st business day of the next
calendar month.

EXECUTIVE ORDER

EXECUTIVE ORDER NUMBER 178

WAIVING CERTAIN PENALTIES

PURSUANT TO CHAPTER 166 A

OF THE GENERAL STATUTES

OF NORTH CAROLINA

WHEREAS, this year's sweet potato crops
("yams") are among the largest in recent years;
and

WHEREAS, the recent heavy rainfall has caused
an increase in the weight of the yams in the fields
due to soil moisture and water saturation; and

WHEREAS, substantial portions of the crops
may be lost if they are not removed from the fields
soon; and

WHEREAS, there is a substantial likelihood that
the farmers of the state will be unable to remove
their yams from the fields before crop deteriora-
tion occurs (with the equipment now available to
them for that purpose) if they are required to
adhere to the weight restrictions presently imposed
by N.C.G.S. 20-88, 10-96, and 20-118; and

WHEREAS, under the provisions of N.C.G.S.
166A-4(3) and 166A-6(c)(3), the Governor, with
the concurrence of the Council of State, may
waive the penalties for exceeding the weight limits
imposed by said statutes in the event of an immi-
nent threat of widespread damage from a natural
or man-made accidental cause within the meaning
of N.C.G.S. 166A-4(3)and 166A-6(c)(3); and

waive penalties arising under N.C.G.S. 20-88, 20-
96, and 20-118 that otherwise would be assessed
against vehicles transporting unprocessed yams to
processing facilities on the highways of the State.

Section 2. Notwithstanding the waivers set forth
above, penalties shall not be waived under the
following conditions:

(1) When the vehicle weight exceeds the
maximum gross vehicle weight criteria
established by the manufacturer
(GVWR) or 90,000 pounds gross vehi-
cle weight, whichever is less.

(2) When tandem axle weights exceed
42,000 pounds and single axle weights
exceed 22,000 pounds.

Section 3. The vehicles described above will be
exempt from the vehicle licensing and tax require-
ments of N.C.G.S. 105, Subchapter 5, Article
36B.

Section 4. This Order shall not be in effect on
highways of the Interstate Highway System and
bridges posted pursuant to N.C.G.S. 136-72.

Section 5. This Order shall be effective immedi-
ately and shall remain in effect until November 15,
1992.

Done in the Capital City of Raleigh, North
Carolina, this the 15th day of October , 1992.

WHEREAS, with the concurrence of the Council
of State, I have found that because (i) they must
adhere to the weight restrictions of N.C.G.S. 20-
88. 20-96 and 20-1 18, farmers may be unable to
remove their yams from the fields soon enough,
(ii) their inability to do so likely will result in
damages to their crops causing them to suffer
losses and, therefore, (iii) there is an imminent
threat of widespread damage from a natural or
man-made accidental cause within the meaning of
N.C.G.S. 166A-4(3);

THEREFORE, pursuant to the authority vested
in me by the Constitution and laws of this State
and with the concurrence of the Council of State,
it is ORDERED:

Section 1. The Division of Motor Vehicles shall

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1464

IN ADDITION

G.S. ] 20-30. 9H, effective July 16, 1986, requires that all letters and other documents issued by the
Attorney General of the United States in which a final decision is nuide concerning a "change affecting
voting " under Section 5 of the Voting Rights Act of 1965 he published in the North Carolina Register .

U.S. Department of Justice

Civil Rights Division

JRD:GS:FHD:tib Voting Section

DJ 166-012-3 P.O. Box 66128

92-3551 Washington, D.C. 20035-6128

September 20, 1992

Robert C. Cogswell, Jr., Esq.

City Attorney

P. O. Box 1513

FayetteviUe, North Carolina 28302-1513

Dear Mr. Cogswell:

This refers to the salary increase for the mayor, mayor pro tem and the city council of the City of
FayetteviUe in Cumberland County, North Carolina, submitted to the Attorney General pursuant to Section
5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on August
4, 1992.

The Attorney General does not interpose any objection to the specified change. However, we note
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent
litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28
C.F.R. 51.41).

Sincerely,

John R. Dunne

Assistant Attorney General

Civil Rights Division

By:

Steven H. Rosenbaum
Chief, Voting Section

1465 7:15 NORTH CAROLINA REGISTER November 2, 1992

IN ADDITION

U.S. Department of Justice

Civil Rights Division

JRD:LLT:BMT:tlb Voting Section

DJ 166-012-3 P.O. Box 66128

92-3515 - - Washington, D.C. 20035-6128

October 20, 1992

Michael Crowell, Esq.
Tharrington. Smith & Hargrove
P. O. Box 1151
Raleigh, North Carolina 27602

Dear Mr. Crowell:

This refers to the Chapter 809 (1992), which provides for a seven-member board of education elected
from single-member districts, by a substantial plurality as provided under state law for party primaries, for
regular four-year terms staggered 3-4 and establishes candidate qualifications, runoff pro\'isions, an
implementation schedule, procedures for filling vacancies, and a districting plan for the Edgecombe County
School District in Edgecombe County, North Carolina, submitted to the Attorney General pursuant to Section
5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on August
3, 1992.

The Attorney General does not interpose any objection to the specified changes. However, we note
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent
litigation to enjoin the enforcement of the changes. See the Procedures for the Administration of Section 5
(28 C.F.R. 51.41).

Sincerely,

John R. Dunne

Assistant Attorney General

Civil Rights Division

By:

Steven H. Rosenbaum
Chief, Voting Section

7:15 NORTH CAROLINA REGISTER November 2, 1992 1466

PROPOSED RULES

TITLE 4 - DEPARTMENT OF

ECONOMIC AND COMMUNITY

DEVELOPMENT

iSotice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Banking Com-
mission intends to adopt rules cited as 4 NCA C 3F
.0201. .0301 - .0304. .0401 - .0403. .0501 -
.0509. .0601. .0602. .0701 and repeal rides cited
as 4 NCAC 3F .0001 - .0003.

1 he proposed effective date of this action is
February 1. 1993.

1 he public hearing will be conducted at 9:00
a.m. on November 17. 1992 at the Dobbs Build-
ing, Suite 6210. 430 North Sali.'ibury Street,
Raleigh. NC.

ixeason for Proposed .Action: Money Transmit-
ters. Codified at Chapter 53, .Article 16. of the
North Carolina General Statutes was extensively
revised effective October 1. 1992. Tlie Banking
Commission proposes to adopt new rules to reflect
the statutory changes.

K^onunent Procedures: Comments must he submit-
ted in writing not later than Wednesday . December
2. 1992. Written comments should be directed to:
T. Mercedes Oglukian. Assistant General Counsel,
North Carolina Banking Commission, P.O. Box
29512. Raleigh. NC 27626-051 2.

CHAPTER 3 - BANKING COMMISSION

SUBCHAPTER 3F - LICENSEES UNDER
MONEY TRANSMITTERS ACT

.0001 APPLICATION FOR LICENSE

No p e rson, oth e r than tho oe e xempt e d by G.S.
53 195, may s e ll or i ss ue ohccks in thi s s tate as a
s e rx ic e or for a fee or oth e r consid e ration without

tirst obtaining a license from th e C ummmsion e r ot
BanJcg. — Application for a license shall be accom
pli s h e d by th e e xecution of Form NC SCA and th e
paym e nt of th e s tatutory inve s tigation fee. — That
form contains a r e qu e st for a lic e n s e to op e rat e a
bu s in ess of se lling and — issuing ch e ck s . — money
instrum e nts as u s e rvic e or for a

statutory requirements and criteria. The form may

be obtained from and should be filed with:

The Commissioner of Banks

P.O. Box 951

Raleigh. North Carolina 27602.

Statutory Authority G.S. 53-92; 53-194: 53-196:
53-197.

.0002 ISSUANCE OF LICENSE

Following the receipt of Form NC SCA. th e
Commi ss ioner of Bank s will investigate the facts
and upon a determination by him that all s tatutory
requirements and criteria have been satisfied he
s hall is s ue a license. Form NC SCA — h — Such
licen s e shall be renewed annually.

Statutory Authoritx G.S. 53-92: 53-194; 53-200.

.0003 REQUIRED REPORTS

Each licen s ee will s ubmit to the Commis s ioner of
Banks annually on or before June 30th evidence
that the required bond i s in effect, a s well as
certified — financial — s tatement s — aftd — a — Itst — of the

l ocations, including agencie s , at which the licensee
engages in the business of selling checks in this
s tate.

Statutory Authority^ G.S. 53-92; 53-198; 53-204.

SECTION .0200 - ADMINISTRATIVE

.0201 DEFINITIONS

(a) As used [n the Rules, unless the context
clearly requires otherwise:

LLi Terms defined m G.S. 53-193 shall

have the same meaning as set forth

therein;

ord e rs

oth e r

f ee or oth e r consid e ration and incorporat es all

(2) "Money Transmitters Act" shall mean
the Money Transmitters Act codified at
Chapter 53. Article J_6 of the North
Carolina General Statutes (G.S. 53-192.
et seq.);

(3) "State" shall mean the .State of North
Carolina;

(4) "Applicant" shall mean a person who
applies for a license under the Money
Transmitters Act;

(5) "Controlling person" shall mean any
10% equity owner of an applicant or
licensee;

(6) "Executive officer" shall mean any
employee (other than a director) of the
applicant or licensee who participates in
or has the authority to participate m

1467

7:15

NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

major policymaking decisions,
fb) An application for a license, amendment to
the application, annual statement, notice, or any
other document which is required by law or
regulation to be filed with the Commissioner shall
be addressed as follows:

Commissioner of Banks

Post Office Box 295 1 2

Raleigh, North Carolina 27626-0512

Statutory Author it}' G.S. 53-193; 53-196: 53-
206.1; 150B-21.2.

SECTION .0300 - LICENSING

.0301 APPLICATION FOR A LICENSE

(a) Any person who wishes to sell or issue
checks jn this State pursuant to the Money Trans-
mitters Act must first obtain a license issued by the
Commissioner. An application for a license can be
obtained from and should be filed pursuant to Rule
.020 Kb) of this Subchapter.

(b) An application for a Money Transmitters'
license shall include the following:

(1) Certified copies of the following docu-
ments, where applicable:

(A) The applicant's Articles of Incorpora-
tion, limited partnership agreement,
or other organizational documents,

(B) A certified copy of the applicant's
Assumed Name Certificate.

(D) A Certificate of Authority to do busi-
ness in this State;

(2) A description of the applicant's busi-
ness experience, operations and organi-
zational structure;

(3) The identity of the applicant's control-
ling persons and their percentage of
equity ownership;

(4) If the applicant is not a publicly traded
corporation, or a subsidiary of such
corporation, the identity, business
experience, education and financial
information of its executive officers and
directors;

(5) Disclosure of any criminal proceedings
pending against or criminal convictions
entered against the applicant, its direc-
tors or executive officers;

(6) Disclosure of any civil proceedings

pending against or civil judgments

entered against the applicant, ks direc-
tors or executive officers which involve
fraud, dishonesty or like offense;

(7) Disclosure of any of the following
proceedings involving the applicant, its
subsidiaries or parent: bankruptcy;
assignment for the benefit of creditors;
receivership; conservatorship; enforce-
ment proceedings resulting in the revo-
cation or suspension of a license or
other privilege to sell or issue checks in
any state;

(8) The name and location of each agent
and subagent authorized by the appli-
cant to sell its checks in this State;

(9) A certified consolidated financial state-
ment of the applicant for the previous
fiscal year, or where the applicant is a
wholly-owned subsidiary of another
corporation, the certified independent
financial statement (not consolidated
with the parent company) of the appli-
cant and, either the certified consolidat-
ed financial statement of its parent for
the previous fiscal year, or the most
recent lOK report filed with the Securi-
ties and Exchange Commission by its
parent;

(10) A specimen copy of the checks to be
sold or issued by the applicant within
this State;

(11) A copy of the applicant's authorized
agent agreement or contract;

(12) A surety bond as set forth in G.S. 53-
198 or evidence of compliance with
G.S. 53-l99(b).

(c) In addition to the documents and information
listed in Paragraph (b) of this Rule, the Commis-
sioner may require additional information neces-
sary to complete an investigation pursuant to G.S.
53-200.

(d) Incomplete application files may be closed
and deemed denied without prejudice when the
applicant has not submitted information requested
by the Commissioner within 30 days of such
request.

Statutory Authority G.S. 53-194; 53-196; 53-198;
53-1 99(h); 53-200; 53-206. 1; 150B-21.2.

.0302 ISSUANCE OF A LICENSE

On receipt of a completed application and pay-
ment of the investigation fee required by G.S. 53-
197. the Commissioner will investigate the appli-
cant pursuant to G.S. 53-200. If the Commission-

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1468

PROPOSED RULES

er Finds that the applicant has met the provisions of
G.S. 53-200, the Commissioner shall issue the
applicant a license.

Statutory- Authority G.S. 53-197: 53-200: 53-
206.1: 150B-21.2.

.0303 LICENSE FEES

A licensee shall pay a license fee of one thousand
dollars ($1 .000) within five days after the issuance
of the license and annually thereafter on or before
December 3 1 of each year.

Statutory Authority G.S. 53-202: 53-206.1: 150B-
21.2.

.0304 AGENT LOCATION FEE

A licensee shall pay to the Commissioner within
five days after the issuance of a license, and
annually thereafter on or before December 31 of
each year, an agent location fee of ten dollars
($10.00) for each location within this .State at
which its checks are sold. Notwithstanding the
number of locations within this State, the agent
location fee shall not exceed five thousand dollars

($5.000) per annum for each licensee.

Statutory Authority G.S. 53-202: 53-206.1: 150B-

21 2

SECTION .0400 - OPERATIONS

.0401 CERTIFICATE OF AUTHORITY

A licensee shall issue a certificate of authority
for each location at which its checks are sold or
issued. The certificate must be posted in public
view and shall state as follows: "Checks of (li-
censee) are sold at this location pursuant to Section
7 of the Money Transmitters Act (N.C. Gen. Stat.
j? 53-203)."

Statutory Authority G.S. 53-203: 53-206.1: 1508-
21.2.

.0402 REQUIRED AND PERMISSIBLE
INVESTMENTS

Unencumbered direct or indirect obligations of
the United States, any agency or instrumentality
thereof and general obligations of this or any state,
county or other political subdivision thereof shall
have a minimum rating of BAA by Moody's
Investors Service or BBB by Standard and Poors.

.0403 SURRENDER OF LICENSE

A licensee shall surrender its license to the
Commissioner no later than 30 days after it has
ceased operations in this State.

Statutory Authority G.S. 53-206.1: 1503-21. 2.

SECTION .0500 - REPORTEVG AND
NOTIFICATIONS

.0501 GENERALLY ACCEPTED

ACCOUNTING PRINCIPLES

For the purposes of the Money Transmitters Act
and this Subchapter, all required Financial state-
ments shall be prepared according to generally
accepted accounting principles.

Statutory Authority G.S. 53-204(a): 53-206.1:
150B-21.2.

.0502 STATEMENT OF NET WORTH

The statement of net worth required by G.S. 53-
204(a) shall include:
(1) A certified consolidated Financial state-

121

13]

ment of the licensee for the previous
Fiscal year;

If the licensee is a wholly-owned subsid-
iary, it must provide its certified indepen-
dent Financial statement (not consolidated
with the parent company), and either the
certiFied consolidated Financial statement
of hs parent for the previous Fiscal year
or the most recent lOK report Filed with
the Securities and Exchange Commission
by its parent;

The statement of net worth described in
Items (1) and £2J of this Rule shall be
Filed no later than April 30 for the pre-
ceding Fiscal year.

Statutory .Authority G.S.
1508-21.2.

53-204(a): 53-206.1:

.0503 ANNUAL STATEMENT

(a) On or before December 31 of each year, a
licensee must File an annual statement which can

Statutory Authority G.S. 53-193: 53-199.1:
206.1: 150B-21.2.

53-

be obtained from and should be Filed pursuant to
Rule .0201(b) of tjiis Subchapter.

(b) The annual statement referenced in Para-
graph (a) of this Rule shall include the following:
(1) The address ot" the offices at which the
licensee sells or issues checks in this
State and the names and locations of the
persons authorized by the licensee to
sell or issue checks in this State;

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(2) A Certificate of Continuation of the
surety bond required by G.S. 53-198 or
evidence of continued compliance with
G.S. 53-199(b);

(3) A Certificate of Existence or Certificate
of Good Standing from the state of
incorporation, where applicable.

Statutory Authority G.S. 53-198; 53-1 99(b); 53-
204(a); 53-206. 1; 150B-21. 2.

.0504 AGENT ACTIVITY REPORTS

A licensee shall file each quarter, for the quarter
then ended, a report of agent activity which con-
tains the following information:

( 1 ) The name of each agent or subagent in
this State and the address at which he
sells or issues checks in this State;

(2) The total number and dollar amount of
the checks sold or issued by each agent
or subagent in this State.

WORTH

A licensee must immediately notify the Commis-
sioner in writing if. at any time, it fails to meet the
minimum net worth requirement of G.S. 53-201 .
The notification shall be accompanied by a detailed
plan to restore the minimum net worth.

Statutory Authority G.S. 53-201; 53-206.1; 150B-
21.2.

.0509 DISHONOR OR DEFAULT IN
PAYMENT INSTRUMENT

A licensee must immediately notify the Commis-
sioner in writing if it dishonors or defaults in the
payment of any check sold or issued because it
lacks the funds to honor the check.

Statutory Authority G.S. 53-206.1; 150B-21.2.

SECTION .0600 - EXAMINATION; BOOKS
AND RECORDS

Statutory Authority G.S. 53-204(a); 53-206.1;
1503-21. 2.

.0505 AMENDMENTS TO APPLICATION

A licensee must maintain a current application
with the Commissioner. If the information con-
tained in the application is or becomes inaccurate
in any material respect, the licensee shall file a
correcting amendment as soon as practicable, but
in no event later than 30 days after the effective
date of such change. An amendment to the appli-
cation can be obtained from and should be filed
pursuant to Rule .0201(b) of this Subchapter.

Statutory: Authority G.S. 53-206.1; 1508-21. 2.

.0506 REVOCATION OR CANCELLATION
OF SURETY BOND

A licensee must immediately notify the Commis-
sioner in writing of revocation or cancellation of
its surety bond furnished pursuant to G.S. 53-198.

Statutory Authority G.S. 53-198; 53-206.1; 150B-
21.2.

.0507 CEASEVG OPERATIONS

A licensee must immediately notify the Commis-
sioner in writing of its decision to cease operations
in ttiis State under the Money Transmitters Act.

Statutory Authority G.S. 53-206.1: 150B-21.2.

.0508 IMPAIRMENT OF MINIMUM NET

.0601 RECORD AND BOOKKEEPING
REQUIREMENTS

(a) Licensee. Each licensee shall maintain at an
office the following:

13}
14]

A record of outstanding checks sold;

liabilities and

A statement of assets,
owner's equity;

A statement of income and expenses for
the current fiscal year to date;
A ledger of dormant checks sold in this
State. The ledger shall detail the date
of issuance and the amount of the
check,
(b) Agent. Each agent shall maintain at [ts
office a record of the disposition of all checks
received from the licensee. The record shall
contain an accounting of aU proceeds from those
checks paid to the licensee and all proceeds due to
the licensee.

Statutory Authority G.S.
150B-21.2.

53-204(h); 53-206.1;

.0602 EXAMINATION FEE

Each licensee shall pay the cost of an examina-
tion conducted by the Commissioner or his
designee pursuant to G.S. 53-204(b). The cost of
such examination shall be the hourly rate estab-
lished annually by resolution of the North Carolina
State Banking Commission pursuant to 4 NCAC
3C . 1601(b), plus travel expenses and the per diem
subsistence allowance provided for State employ-
ees pursuant to G.S. 138-5 through G.S. 138-7.

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1470

PROPOSED RULES

and an\' regulations promulgated thereunder.

Staniton.- Authority G.S. 53-204(h): 53-206.1;
150B-21.2.

SECTION .0700 - LICENSE REVOCATION

SUBCRAPTER 41 E - LICENSEV'G OF
GROUP HOMES FOR CfflLDREN

SECTION .0500 - MINIMUM STANDARDS

FOR PRIVATE AND PUBLIC GROUT

HOMES

.0701 HE.ARINGS

Any hearings conducted pursuant G.S. 53-206
and 53-207 shall proceed in accordance v.ith 4
NCAC 3B .0200 et seq.. and Chapter 150B of the
North Carolina General Statutes.

Statutory Authority G.S. 53-206: 53-206.1: 53-
207: 150B-21.2.

TITLE 10 - DEPARTMENT OF HUAL\N
RESOURCES

[Notice /-v hereby i>i\cn in accordance with G.S.
150B-21.2 that the Social Services Conwiission
intends to amend rules cited as 10 NCAC 41 E
.0514: 41 G .0602. .1102: 41 R .0003.

1 he proposed effective date of this action is
March 1. 1993.

1 he public hearing will be conducted at 10:00
a.m. on December 2. 1992 at the Division of
Social Services, .Albenuirle Building. Room 943-2.
325 .V. Salisbury St.. Raleigh. .\'.C.

IVeason for Proposed Action: To bring state
regulations into compliance with ADA recently
enacted .Americans with Disabilities Act.

(comment Procedures: Convyients may be pre-
sented in writing before or at the public hearing or
orally at the hearing. Time limits for oral remarLs
may be imposed by the Conwiission Chairman.
.Any person may request copies of these Rules by
calling or writing to Don Bowen, Division of
Social Services, 325 N. Salishur}- St. . Raleigh. NC
27603. (919) 733-3055.

hiditor's \ote: These Rules were filed as tempo-
rary amendments effective October 14, 1992 for
a period of 180 days or until the permanent rule
becomes effective, whichever is sooner.

CHAPTER 41 - CHILDRENS SER\TCES

.0514 CHILD CARE AND DEVELOPMENT:
HE.ALTH

(a) Medical Program. E\ery' group home shall
ha\e a planned program of medical care.

(1) Medical Requirements for Admission.
No child shall he accepted into a group
home without having had a physical
examination within 90 days prior to
admission, which shall include a signed
statement by a physician. ph\'sician' s
assistant or nur s e practitioner that the
child appears to bo freo of oommunioa
blc diseases, and spoeif\'ing any modi
eal — conditions — &fs4 — defects — the child
might haw. from a licensed medical
provider specifying the child's current
medical condition and medications
prescribed and indicating the presence
of any communicable disease or medi-
cal condition which may pose a signifi-
cant risk of transmission in the facility.
If a child is in the custody of a depart-
ment of social services, is already
scheduled to have and is having a phys-
ical completed annually, and is entering
a private group home, the schedule of
annual physicals shall not be changed.
Howe\'er a copy of the most recent
physical shall be sent by the responsible
department of social services to the
pri\ate group home for the child's
record there except that in shelter
homes, the physical examination and
statement shall be obtained within one
week of a child's admission.
fiA) — The medical examination shall include
a tuberculin te s t (or x ray if there has
been a history' of contacts), an exami
nation for intestinal parasites, and a
blood — test — f&f — \enereal — disease — if
indicated.
{B) — If these tests prove positixe. treatment
s hall be given immediately, and ad
mission to the home delayed — until
further tests show the child to — be
noninfectious.
\Qi — A child admitted to a group home
shall be immunized against diphtheria.

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PROPOSED RULES

tetanus, whooping cough, poliomyeli-
tis, red measles (rubeola), and rubella
prior to admission, or as soon after as
practical. Documentation of these
immunizations shall be obtained with-
in 30 days of a child's admission.

(2) Medical Care. Arrangements shall be
made with at least one licensed physi-
cian and one dentist for the care of
children in the home.

(3) Hospital Care. Arrangements shall be
made with a hospital for the admission
of children from the group home in the
event of serious illness or in an emer-
gency.

(4) First Aid.

(A) Houseparents shall receive training
and be able to administer first aid.

(B) First aid kits shall be available for
instant use.

(5) Home Medical Care Practices.

(A) Houseparents shall be able to recog-
nize the common symptoms of illness-
es of children and to note any marked
physical or emotional handicaps of
children.

(B) A sterile clinical thermometer shall be
kept available for use.

(D) Medicine supply cabinets shall be kept
locked when not in immediate use.

(6) Medical Records. Each child shall
have a personal medical record avail-
able which shall include:

(A) the statement of the physician who
examined him at the time of admis-
sion to the home;

(B) a record of his immunizations; this
record shall be obtained within 30
days of a child's admission to the
home;

(D) a record of the medical care and
examinations given while in care,
including a record of hospitalizations,
significant illnesses or accidents, and
treatment given.

(7) Dental Records. Included in a child's
medical record shall be a dental record,
showing dates of examinations and by
whom given.

(b) Routine Aspects of Health, Personal Hy-
giene, and Safety.

(1) Sleep. Each child in a group home
shall have enough sleep for his age at
regular and reasonable hours and under
conditions conducive to rest. While
children are asleep, at least one staff
member shall be near enough to hear
calls.

(2) Hygiene. Children shall be taught and
helped to keep themselves clean. They
shall receive training in all aspects of
personal hygiene. Bathing and toilet
facilities shall be in working order and
kept clean.

(3) Toilet Articles.

(A) Each child shall have his own clearly
identified toothbrush, comb, towel
and wash cloth and his own separate
place for keeping these personal
articles.

(B) Towels, wash cloths, and bed linens
shall be changed weekly or more
often as required by good hygiene.

(4) Safety. Any child care staff transport-
ing a child less than two years of age
shall have such child properly secured
in a child passenger restraint system
which is of a type and which is in-
stalled in a manner approved by the
Commissioner of Motor Vehicles.

(1) Meals served to all children shall pro-
vide for their nutritional requirements
as advised by the National Research
Council (Recommended Daily Dietary
Allowances).

(2) Any modified food needs of an individ-
ual child shall be provided under the
direction of a physician.

(3) The menus shall be planned by or in
consultation with a registered nutrition-
ist or dietitian.

Statuton' Authority G.S. 13ID-10.5; 143B-153.

SUBCHAPTER 41 G - MINIMUM

STAIVDARDS FOR CHILD CARING

INSTITUTIONS

SECTION .0600 - PRIVATE INSTITUTION
SOCIAL SERVICES

.0602 ADMISSION SERVICES

(a) Admission policies shall be clearly defined in
writing and available to persons or agencies mak-
ing inquiries. Admission policies shall be careful-

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1472

PROPOSED RULES

ly reviewed from time to time and changed as
needs and conditions in the community change.

(b) Admission services shall be in accordance
with the stated policies of the institution. Admis-
sions shall be limited to those children who need
care apart from their families and for whom the
institution is qualified by staff, program, facilities,
and services to give appropriate care.

(d) Decisions on admissions shall be based upon
a study of the total situation of the child and his
particular needs. The study shall be made prior to
admission and shall include all information which
will enable a careful analysis of the application to
determine if the institution's program of care is
appropriate for the child.

(e) When parents or other relatives with legal
responsibility for a child apply for the child's
admission the institution shall ascertain what
community resources are available to keep the
child in his own home, such as financial assis-
tance, homemaker services, day care services, and
other supportive services. County departments of
social ser\'ices where requested can assist families
in e\'aluating community resources available to
them.

(fl Children shall be accepted by written appli-
cation signed by the person or representative of the
agency having legal authority to place the children.
Written agreements shall be made setting forth the
responsibilities of the institution and of the person
or agency having legal authority for caring and
planning for the child. Provision shall be made
for continuing relationships between the institution,
the legally responsible person or agency, and the
child during the period of placement.

(g) The provisions of the North Carolina inter-
state placement laws (G.S. 110-50 to 110-57 and
110-57.1 et. seq.) shall be met when out of state
children are being considered for admission or
discharge. North Carolina interstate placement
laws require the approval of the North Carolina
Department of Human Resources prior to place-
ment of a child by an out of state agency. Corre-
spondence relati\e to admission, progress, and
discharge of children in custody of out of state
agencies shall be routed through the North Caroli-
na Department of Human Resources, division of
social services, as outlined in its operational
manual.

(h) No child shall be accepted in an institution
without a medical examination and a statement
signed by a licensed phyjioian dco l armg the child
tree of communicable di s ea s e and spcoifi'ing any

condition or dcfcots the child might have and any
medications prescribed, medical provider specify-
ing the child's current medical condition and
medications prescribed and indicating the presence
of any communicable disease which may pose a
significant risk of transmission in the facility.

(i) In the event of emergency admissions the
required admission procedures shall be completed
within two weeks following admission. If more
than five percent of an institution's population are
admitted on an emergency basis, in any 12 month
period, the institution shall provide an identifiable
program for the provision of emergency care in a
living unit separate from other children in resi-
dence.

Statutory Authnrin- G.S. 131D-10.5: 143B-153.

SECTION .1100 - PUBLIC INSTITUTION
SOCIAL SERVICES

.1102 ADMISSION SERVICES

(a) Admission policies shall be clearly defined in
writing and available to persons or agencies mak-
ing inquiries. Admission policies shall be careful-
ly reviewed from time to time and changed as
needs and conditions in the community change.

(e) When parents or other relatives with legal
responsibility for a child apply for the child's
admission, the institution shall ascertain what
community resources are available to keep the
child in his own home, such as financial assis-
tance, homemaker services, day care services, and
other supportive services. County departments of
social services, where requested, can assist fami-
lies in evaluating community resources available to
them.

(f) A public institution shall not accept legal
custody of children. Children shall be accepted by
written application signed by the person or repre-

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PROPOSED RULES

sentative of the agency having legal authority to
place the children. Written agreements shall be
made setting forth the responsibilities of the
institution and of the person or agency having legal
authority for caring and planning for the child.
Provision shall be made for continuing relation-
ships between the institution, the legally responsi-
ble person or agency, and the child during the
period of placement.

(g) The provisions of the North Carolina inter-
state placement laws (G.S. 1 10-50 through 1 10-57
and 110-57.1 et. seq.) shall be met when out of
state children are being considered for admission
or discharge. North Carolina interstate placement
laws require the approval of the North Carolina
Department of Human Resources prior to place-
ment of a child by an out of state agency. Corre-
spondence relative to admission, progress, and
discharge of children in custody of out of state
agencies shall be routed through the North Caroli-
na Department of Human Resources, division of
social services, as outlined in its operational
manual.

(h) No child shall be accepted in an institution
without a medical examination and a statement
signed by a licensed phy s ician declaring the child
free of communicable disease and s pecifying any
condition or defects the child might have and any
medication s pre s cribed, medical provider specify-
ing the child's current medical condition and
medications prescribed and indicating the presence
of any communicable disease which may pose a
significant risk of transmission in the facility.

(i) In the event of emergency admissions, the
required admission procedures shall be completed
within two weeks following admission. If more
than five percent of an institution's population are
admitted on an emergency basis, in any 12 month
period, the institution shall provide an identifiable
program for the provision of emergency care in a
living unit separate from other children in resi-
dence.

Statutory Authority G.S. 131D-10.5; 143B-153.

SUBCHAPTER 41 R - LICENSING

STANDARDS: RESIDENTIAL CAMPS

PROVIDING FOSTER CARE FOR

CHILDREN

.0003 PROGRAM REQUIREMENTS AND
SERVICES

(a) The camp shall have a written description of
services provided by the camp to address the needs
of the population served. The document shall

include a description of the camp's plan for family
involvement and for the provision of services,
making it clear which services are provided direct-
ly by the camp and which are provided in coopera-
tion with either family or community resources.

(b) The written description of the camp's plan
shall be utilized in providing daily activities and
structures for meeting the physical, social, emo-
tional, educational and developmental needs of
children in care.

(c) The camp shall designate the staff responsi-
ble for planning, implementing, and evaluating its
various program activities and functions and its
arrangements for groupings of children in care.

(d) The camp shall designate the staff responsi-
ble for periodic assessment of each child's prog-
ress in care and for determining when changes
need to be made in the child's plan of care.

(e) The camp shall specify who is authorized to
admit and discharge children. Prior to the admis-
sion of a child, the camp shall secure documenta-
tion of the child's legal custody and shall admit the
child only upon written agreement signed by the
person or agency representative having the legal
authority to place a child.

(f) Each child shall have a medical assessment,
within 60 days prior to admission, indicating the
child's ability to participate in the activities and t^
absence of communicable diseases, specifying the
child's current medical condition and medications
prescribed and indicating the presence of any
communicable disease which may pose a signifi-
cant risk of transmission in the facility.

(g) The camp shall not accept a child for care
until an intake study has been made by the as-
signed staff person and it has been determined that
the needs and the best interests of the child and his
family or custodian can be met through the camp-
ing program.

(h) The camp shall establish clearly written
admission policies and procedures which shall be
available, upon request, to the public.

(i) Admission to the camp must be limited to the
number of children for whom the camp is licensed
and types of children for whom a camp setting is
imperative. Only those children who need care,
individual attention and supervision apart from
their families and for whom the camp is qualified
by staff, program, facility, and services shall be
admitted.

(j) Prior to the admission date, the camp shall
document the following in writing for each child:

(1) who has legal custody;

(2) who will be financially responsible for
the support and medical and dental care

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1474

PROPOSED RULES

of the child;

(3) how the family and legal custodian will
participate in the program;

(4) how phone calls, letters, and visits will
be arranged;

(5) how clothing, allowances, and gifts for
the child will be handled;

(6) written consent from the child's legal
custodian for the child to participate in
activities that the camp will be planning
for the child away from the camp area;
and

(7) a written agreement, signed prior to the
day of admission by the camp staff, the
child, parent and legal custodian, which
specifies who will be responsible for
planning and implementing goals while
the child is in the camping program.

(k) The camp shall establish written discharge
policies and procedures which will include at least
the following:

(1) giving prior notice to the parent or
custodian when a child is scheduled for
discharge;

(2) planning with the child and his parent
or legal custodian for his discharge,
giving the opportunity for discussion
and after-care planning;

(3) discharging children under 18 who have
not been legally emancipated only to
the person or agency having legal cus-
tody of the child;

(4) notifying the legal custodian promptly
in the event a child leaves the camp for
any non-scheduled purpose such as
medical emergency or runaway. Proce-
dures shall be developed for handling
such non-scheduled departures and for
determining how the child will return to
the program; and

(5) documenting in the case record the
circumstances leading to discharge, the
reason for discharge, who requested the
discharge, the progress that had been
made toward realizing the goals, and to
whom the child was discharged.

(1) Written intervention goals and plans for
implementing services to each child in care will be
developed within 30 days of admission for each
child and documented in the child's case file,
including:

(1) goals stated in specific, realistic, and

measurable terms;
(1) plans that are action oriented, including
who on the staff is responsible for the

child to reach specific goals, and how
the staff will act in order for the goals
to be met; and
(3) goals and plans written in cooperation
with the child and his family and his
legal custodian,
(m) The child's service plan shall be based upon
the assessment of the child and the family's needs
and the reasons that the child's foster care needs
can best be accommodated in the camping environ-
ment.

(n) The plan shall be reviewed at least every
three months to determine the child's and family's
progress or lack of progress towards meeting the
goals and objectives, and to determine changes that
need to be made in the plan.

(o) Children's camps shall maintain complete,
accurate, and current case records on each child
receiving service.

(p) The case record shall include at least the
following:

(1) a complete application for service,
signed by the person or agency having
legal custody, which includes at least
the following:

(A) the name, address, race, sex. religion,
birth date, and place of birth of the
child;

(B) the name, address, telephone number,
and marital status of the parent or
legal custodian, siblings, grandpar-
ents, and other significant individuals
to the child;

(D) all documents related to the referral of
the child to the camp, including so-
cial, family, medical, educational, and
other pertinent histor)' that was used
in making a decision to admit the
child to the camping program.

(2) copies of legal documents such as birth
certificates, court dispositions, place-
ment agreements;

(3) a copy of the child's service plan which
is kept current by the assigned staff and
documentation of the efforts made by
the camp designated staff person to
enable the client to reach the agreed
upon goals;

(4) results of all medical examinations,
psychological examinations, and other
essential information; and

(5) a summary supporting the reasons for
discharge or termination from the pro-

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NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

gram.

(q) All information in the case record must be
considered privileged and confidential and shall be
released only when the parent or legal custodian
has signed a consent to release information form.

(r) During the period of service for the child,
the case record shall document service and educa-
tional experiences provided and the child's re-
sponse, especially:

(1) observations of response to individual
goals and plans and individualized
educational plan recorded with signifi-
cant frequency to enable evaluation of
their efficiency;

(2) reports of the review, evaluation and
change in the individualized service
plan and individualized education plan,
which are to be done at least every
three months;

(3) summaries of parent conferences;

(4) records of services provided, especially
medical and dental services;

(5) records of significant behavior inci-
dents;

(6) records of time away from camp; and

(7) updates of any change in admission
data.

(s) The camp shall make every effort to enhance
and expand the family's relationship with the
child, and to facilitate positive communication
between them in accordance with the child's
service plan.

(t) The camp shall provide conditions of reason-
able privacy for planned visits and telephone
contacts between the child and family, friends, and
significant others.

(u) There must be a minimum of 2 counselors
certified in Basic Rescue and Water Safety for
each 10 children participating in any on property
activity involving water, such as swimming,
boating, canoeing, and rafting. Off property, the
ratio shall be 3 counselors for each 10 children for
trips of 24 hours or more. At least one counselor
shall be certified in CPR by the American Red
Cross.

(v) An itinerary shall be on file at camp for any
activity for more than 24 hours that is off of camp
property, which shall include names of those
participating, daily schedule, listing of check-in
points, routes to be taken, and telephone numbers
of emergency resources along each route (sheriffs,
hospitals, rescue squads).

Statutory Authority G.S. 131D-10.5.

I\otice is hereby given in accordance with G.S.
150B-21.2 that the Social Services Commission
intends to amend rule cited as 10 NCAC 42C
.2401 and adopt rule cited as 10 NCAC 42V
.0806.

1 he proposed effective date of this action is
March 1, 1993.

1 he public hearini^ will he conducted at 10:00
a.m. on December 2, 1992 at the Division of
Social Services, Albemarle Bldg. , Room 943-2,
325 N. Salisbury St.. Raleigh, NC 27603.

MXeason for Proposed Actions:

10 NCAC 42C .2401 - To bring federal regulations
into compliance with the recently enacted Ameri-
cans with Disabilities Act.

10 NCAC 42V .0806 - 77?^ rule is being proposed
for adoption in order to protect the confidentiality
of information included in the Adult Protective
Services Register while allowing county depart-
ments of social services access to the information
to assist them in facilitating the protection of
disabled adults.

(comment Procedures: Comments nuiy he pre-
sented in writing or orally at the hearing. Time
limits for oral remarks may be imposed by the
Commission Chairnum. Any person nuiy request
copies of these rules by calling or writing to Don
Bowen. Division of Social Services, 325 N. Salis-
bury St.. Raleigh, NC 27603, 919/733-3055.

Editor's Note: Rule 10 NCAC 42C .2401 was
filed as a temporary rule effective October 14,
1992 for a period of 180 days or until the perma-
nent rule becomes effective, whichever is sooner.

CHAPTER 42

INDIVIDUAL AND FAMILY
SUPPORT

SUBCHAPTER 42C - LICENSING OF
FAMILY CARE HOMES

SECTION .2400 - ADMISSION POLICIES

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PROPOSED RULES

.2401 ADMISSIONS

(a) Any adult (18 years of age or over) who,
because of a temporary or chronic physical condi-
tion or mental disability, needs a substitute home
may be admitted when, in the opinion of the
resident, physician, family or social worker, and
the administrator the services and accommodations
of the home will meet his particular needs.

(b) Exceptions. People are not to be admitted:

(1)

(2)
(3)

(4)

(5)

for treatment of mental illness, or alco-
hol or drug abuse;
for maternity care;

for professional nursing care under
continuous medical supervision;
for lodging, when the personal assis-
tance and supervision offered for the
aged and disabled are not needed; or
who pose a direct threat to the health or
safety of others. with disease — in a
oommunioablo — s tage — or carrier — state.
Thi s — provision does — not prohibit the
admission of residents who arc hepatitis
B carriers to a home operated by a
contract — agency — of an — ai=ea — mental
health, — developmental — disabilitie s and
s ub s tance abuse program if the home is
in compliance with the rules codified in
10 NCAC 18H .0107 through .0115.
Copies of the rules in 10 NCAC 18H
.0107 through 01 15 may be obtain e d at
no co s t by writing: Publications Offi
eer. Division of Mental Health, Bevel
opmental — Disabilities — and — Sub s tance
Abu s e — Serx'iees. — ^35 — N^ — iSalisbury
Street, Raleigh, North Carolina 27603.
The Division of Facility Services may
accept — documentation — submitted — te
county departments of social — services
by area mental health, developmental
disabilitie s and — substance abuse pro
gram s a s evidence that the home is in
compliance with 10 NCAC 1 8 H .0107
through .01 15. l ^ nless the Communiea
We — Di s ea s e — Control — Mea s ure s — ( 15A
NCAC lOA .0200) require re s triction,
thts — prox'i s ion doc s — not — prohibit th e
admi ss ion — &f — individual s — Vt4th — HIV
infection to a home which has estab
li s hcd — through — ifc — written — admission
polic i es that it i s operated s olely for the
benefit of residents with HIV infection
and which i s following infection control
measure s outlined in the — "Guidelines
for the prevent i on of the Tran s mi s sion
of Human Immunodeficienev Virus and

Hepatiti s B Virus to Health Care and
Public Safety Workers". — The adminis
trator — is — responsible for establishing
written procedures for implementing the
infection control measures. — Documen
tation that the procedures have been
reviewed and approved by a qualified
health — eafe — professional — m — private
practice or in the public health depart
ment must be on file in the home and
available for inspection by the monitor
ing and licen s ing agencies. — Copies of
the rules in ISA NCAC 19A .020Q may
be obtained at no co s t by writing the
Communicable Di s ea s e Control Section.
PrG. — B<« — 27687, — Raleigh, — NrGr
2761 1 . — Copies of the "Guidelines for
f the Transmission of

the prevention o
Human — Immunodeficiency — Viru s — and
Hepatitis B Virus to Health Care and
Public Safety Workers" (No. 89 107)
may be obtained at no cost by writing
NIOSH, Attention: Publication s . 4 676
Columbus Parkway, Cincinnati. Ohio.
4 5226.

Statutory' Authority G.S. 131D-2: 143B-153.

SUBCHAPTER 42V - PROTECTIVE
SERVICES FOR ADULTS

SECTION .0800 - CONFIDENTIALITi

.0806 ADULT PROTECTIVE SERVICES
REGISTER

(a) Information submitted by county departments
of social services to the Adult Protective Services
Register is confidential. Non-identifying statistical
information and general information about the
scope, nature and extent of adult abuse, neglect
and exploitation in North Carolina is not subject to
this Rule of confidentiality.

(b) Access to the Adult Protective Services
Register is restricted to:

( 1 ) the county department of social servic-
es,
(A) in order to identify whether an adult
who is the subject of an Adult Protec-
tive Services evaluation has been
previously reported and esaluated
under G.S. IPSA, Article 6 in any
county in the state; or
in order to share client s pecific infor-

iB]

mation with an out-of-state protective
services agency to assure that protec-

1477

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PROPOSED RULES

tive services will be made available to
an adult previously served in North
Carolina as quickly as possible for the
purpose of preventing further abuse,
neglect or exploitation; or
(C) in order to share client specific infor-
mation with law enforcement agencies
to assure that protective services will
be made available to an adult as
quickly as possible;

(2) the Division of Social Services staff.

(A) in order to perform duties pertinent to
managing and maintaining the Regis-
ter and monitoring, auditing, evaluat-
ing or facilitating the administration
of other state and federal programs
regarding Adult Protective Services
based on information in the Register.
or

(B) in order to share client specific infor-
mation with an out-of-state protective
services agency to assure that protec-
tive services will be made available to
an adult previously served in North
Carolina as quickly as possible for the
purpose of preventing further abuse,
neglect or exploitation; and

(3) individuals who receive approval to
conduct studies of cases in the Adult
Protective Services Register.

(A) Such approval must be requested in
writing to the Director. Division of
Social Services. The written request
will specify and be approved on the
basis of:

(i) an explanation of how the findings
of the study have potential for
expanding knowledge and improv-
ing professional practices in the
area of prevention, identification
and treatment of adult abuse,
neglect and exploitation;

(ii) a description of how the study
will be conducted and how the
findings will be used;

(iii) a presentation of the individual's
credentials; and

(iv) a description of how the individu-
al will safeguard the information.

(B) Access will be denied when m the
judgement of the Director the study
will have minimal impact on either
knowledge or practice.

Statuton- Aurhorin- G.S. 108A-80: 108A-I03:

143B-153.

iS otice is hereby given in accordance with G.S.
150B-21.2 that the Social Services Commission
intends to amend rules cited as 10 NCAC 42E
. 1207 and 42Z. 0901.

1 he proposed effective date of this action is
February 1 . 1993.

1 he public hearing will be conducted at 10:00
a.m. on December 2, 1992 at the Division of
Social Services, Albemarle Bldg. , Room 943-2,
325 N. Salisbury Street, Raleigh. NC 27603.

txeason for Proposed Action: These Rules are
being proposed for amendment to facilitate the
inspection of adult day care and adult day health
programs by local fire, sanitation and buiUiing
inspectors.

L^omnient Procedures: Comments may be pre-
sented in writing anytime before or at the public
hearing or orally at the hearing. Time limits for
oral remarks may be imposed by the Commission
Chairman. Any person may request copies of
these Rules by calling or writing to Don Bowen.
Division of Social Services, 325 North Salisbury
St. . Raleigh. NC 27603. (919) 733-3055.

SUBCHAPTER 42E - ADULT DAY CARE
STANDARDS FOR CERTIFICATION

SECTION .1200 - CERTIFICATION
PROCEDURE

.1207 PROCEDUTIE

(a) All individuals, groups or organizations
operating or wishing to operate an adult day care
program as defined by G.S. 13 lD-6 must apply for
a certificate to the county department of social
services in the county where the program is to be
operated.

(b) A designated social worker v^ill supply
necessary forms and standards for certification and
will make a study of the program.

(c) The following forms and materials make up
an initial certification package and must be submit-
ted through the county department of social servic-
es to the state Division of Social Services:

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1478

PROPOSED RULES

(1)
(2)
(3)
(4)

(5)

(6)

(7)

(8)

(9)

10)

(11)
(12)

The program policy statement;
Organizational diagram;
Job descriptions;

Documentation showing planned expen-
ditures and resources available to carry
out the program of service for a 12
month period;

A floor plan of the facility showing
measurements, restrooms and planned
use of space;

Form DSS-1498 (Fire Inspection Re-
port) or the equivalent completed and
signed by the local fire inspector no
more than 30 days prior to submission
with the certification package;
Form DSS-1499 (Building Inspection
Report for Day Care Services for
Adults) or the equivalent completed and
signed by the local building inspector,
or fire inspector or fire marshall if a
building inspector is not available, no
more than 30 days prior to submission
with the certification package;
Form DSS-2386 (Sanitation Evaluation
Report) or the equivalent completed and
signed by a local sanitarian no more
than 30 days prior to the submission
with the certification package;
Written notice and the effective date, if
a variance of local zoning ordinances
has been made in order for property to
be utilized for an adult day care pro-
gram;

A copy of the articles of incorporation,
bylaws and names and addresses of
board members, for adult day care
programs sponsored by a non-profit
corporation;

The name and mailing address of the
owner if a proprietary program;
A medical statement for each proposed
staff member certifying to freedom
from communicable disease or condi-
tion and to good health signed by a
licensed physician, physician assistant
or nurse practitioner no more than 30
days prior to submission with the certif-
ication package. When such certifica-
tion cannot be made, the proposed staff
member may be hired based on an
assessment of whether the work tasks
would pose a significant risk to the
health of the employee, co-workers, or
the public, or whether the employee is
unable to perform the normally as-

signed job duties; and
(13) DSS-1500 (Adult Day Care Certifica-
tion Report). This form must be sub-
mitted by the county department of
social services with a copy to the pro-
gram,
(d) The following forms and materials make up
a certification package for the renewal of a certifi-
cation and must be submitted through the county
department of social services, no more than 60
days prior to the end of the current period of
certification, to the state Division of Social Servic-
es:

(1) Form DSS-1498 (Fire Inspection Re-
port) or the equivalent completed and
signed by the local fire inspector no
more than 30 day s 12 months prior to
submission with the certification pack-
age;

(2) Form DSS-1499 (Building Inspection
Report for Day Care Services for
Adults) or the equivalent when structur-
al building modifications have been
made during the previous 12 months.
completed and signed by the local
building inspector, or fire inspector or
fire marshall if a building inspector is
not available, within 30 days following
completion of the structural building
modifications; no more than 30 day s
prior to submission with the ocrtifica
tion package when s tructural building
modifications have been made during
the previous 12 months;

(3) Form DSS-2386 (Sanitation Evaluation
Report) or the equivalent completed and
signed by a local sanitarian no more
than 30 days 12 months prior to sub-
mission with the certification package;

(4) A medical statement for each staff
member certifying to freedom from
communicable disease or condition and
to good health signed by a licensed
physician, physician assistant or nurse
practitioner no more than 12 months
prior to submission with the certifica-
tion package. When such a certifica-
tion cannot be made, employment may
be continued, terminated, or reassigned
based on an assessment of whether the
employee's work tasks would pose a
significant risk to the health of the
employee, co-workers, or the public, or
whether the employee is unable to
perform normally assigned job duties;

1479

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PROPOSED RULES

(5) An updated copy of the policy state-
ment, organizational diagram, job
descriptions, names and addresses of
board members if applicable, and a
floor plan showing measurements,
restrooms, and planned use of space, if
any changes have been made since the
previous certification package was
submitted;

(6) Documentation showing planned expen-
ditures and resources available to carry
out the program of service for a 12
month period; and

(7) DSS-1500 (Adult Day Care Certifica-
tion Report). This form must be sub-
mitted with the certification package by
the Department of Social Services to
the Division of Social Services at least
30 days in advance of the expiration
date of the certificate, with a copy to
the program.

(e) If during the study of the program it does
not appear that all standards can be met, the
county department will so inform the applicant,
indicating in writing the reasons, and give the
applicant an opportunity to withdraw the applica-
tion. Upon the applicant's request, the application
will be completed and submitted to the Division of
Social Services for consideration.

(f) Following review of the certification pack-
age, a pre-certification visit may be made by staff
of state Division of Social Services.

(g) The Division of Social Services will prompt-
ly notify in writing to the applicant and the county
department of social services of the action taken
after a review of the certification package and
visit, if made.

Skirutory AutJwhty G.S. 130A-148; 131D-6;
143B-I53.

SUBCHAPTER 42Z - ADULT DAY HEALTH
STANDARDS FOR CERTIFICATION

SECTION .0900 - CERTIFICATION
INFORMATION

.0901 PROCEDURE

(a) All individuals, groups or organizations
operating or wishing to operate an adult day health
program as defined by G.S. 131 D-6 must apply for
a certificate to the county department of social
services in the county where the program is to be
operated.

(bj A designated social worker will supply

(3)
(4)

(5)

(6)

(7)

necessary forms and standards for certification and
will make a study of the program.

(c) The following forms and materials make up
an initial certification package and must be submit-
ted through the county department of social servic-
es to the state Division of Social Services:

(1) The program policy statement;

(2) Organizational diagram;
Job descriptions;

Documentation showing planned expen-
ditures and resources available to carry
out the program of service for a 12
month period;

A floor plan of the facility showing
measurements, restrooms and planned
use of space;

A copy of the articles of incorporation,
bylaws and names and addresses of
board members, for adult day health
programs sponsored by a non-profit
corporation;

The name and mailing address of the
owner if a proprietary program;
A medical statement of each proposed
staff member certifying to freedom
from communicable disease or condi-
tion and to good health signed by a
licensed physician, physician assistant
or nurse practitioner no more than 30
days prior to submission with the certif-
ication package. When such certifica-
tion cannot be made, employment may

(8)

(9)

(10)

(11)
(12)

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November 2, 1992

1480

PROPOSED RULES

commence, continue, terminate, or be
reassigned based on an assessment on
wiiether the employee's work taslcs
would pose a significant risk to the
health of the employee, co-workers or
the public, or whether the employee is
unable to perform the normally as-
signed Job duties; and
(13) DSS-6205 (Adult Day Health Certifica-
tion Report). This form must be sub-
mitted by the county department of
social services with a copy to the pro-
gram,
(d) The following forms and materials make up
a certification package for the renewal of a certifi-
cation and must be submitted through the county
department of social services, no more than 60
days prior to the end of the current period of
certification, to the state Division of Social Servic-
es:

(1) Form DSS-1498 (Fire Inspection Re-
port) or the equivalent completed and
signed by the local fire inspector no
more than 30 day s \2 months prior to
submission with the certification pack-
age;

(2) Form DSS-1499 (Building Inspection
Report for Day Care Services for
Adults) or the equivalent when structur-
al building modifications have been
made during the previous 12 months,
completed and signed by the local
building inspector, or fire inspector or
fire marshall if a building inspector is
not available, within 30 days following
completion of the structural building
modifications; no more than 30 days
prior to s ubmi s sion with the cortifiea
tion package when structural building
modifications have been made during
the previous 12 months;

(3) Form DSS-2386 (Sanitation Evaluation
Report) or the equivalent completed and
signed by a local sanitarian no more
than 30 days 12 months prior to sub-
mission with the certification package;

commence, continue, terminate, or be
reassigned based on an assessment on
whether the employee's work tasks
would pose a significant risk to the
health of the employee, co-workers or
the public, or whether the employee is
unable to perform the normally as-
signed job duties;

(6) Documentation showing planned expen-
ditures and resources available to carry
out the program of service for a 12
month period; and

(7) DSS-6205 (Adult Day Health Certifica-
tion Report). This form must be sub-
mitted with the certification package by
the Department of Social Services to
the Division of Social Services at least
30 days in advance of the expiration
date of the certificate, with a copy to
the program.

(f) Following review of the certification pack-
age, a pre-certification visit may be made by staff
of state Division of Social Services.

Statuton- Authority- G.S. 130A-148: 121D-6:
143B-153.

iS otice is hereby given in accordance with G.S.
150B-21.2 that the Department of Human Resourc-
es intends to adopt rule cited as 10 NCAC 46G

1481

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PROPOSED RULES

.0116.

1 he proposed effective date of this action is
February 1, 1993.

1 he public hearing will be conducted at 2:00
p.m. on December 8, 1992 at the Council Build-
ing. Room 201. 701 Barbour Drive, Raleigh, NC
27603.

iveason for Proposed Actions: To apply the rules
for nonregistered homes in the subsidized day care
program to nonregistered homes funded through
the Child Care and Development Block Grant.

y^omment Procedures : Written or oral comments
may he submitted at the Public Hearing. Written
comments may also be submitted prior to the
Public Hearing. Comments or questions should be
directed to Mr. Jackie Sheppard, APA Coordina-
tor, Division of Facility Services, P.O. Box 29530,
Raleigh, NC 27626-0530. Telephone (919) 733-
2342.

CHAPTER 46 - DAY CARE RULES

SUBCHAPTER 46G - NONREGISTERED
DAY CARE HOME REQUIREMENTS

SECTION .0100 - GENERAL
REQUIREMENTS

.0116 APPLICABILITY OF RULES

The rules of this Subchapter, including any
subsequent amendments, shall also apply to non-
registered home recipients of Child Care and
Development Block Grant child day care services
funds administered by the Department of Human
Resources.

Authority 45 C.F.R. 98.11(b); 45 C.F.R. 98.40;
150B-21.6.

iSotice is hereby given in accordance with G.S.
150B-21.2 that the Social Services Commission
intends to adopt rules cited as 10 NCAC 46G
.0109 - .0115, .0213 - .0215 and repeal rules
cited as 10 NCAC 46G .0101, .0103 - .0106,
.0108, and .0201.

1 he proposed effective date of this action is
February 1. 1993.

1. he public hearing will be conducted at 10:00
a.m. on December 2, 1992 at the DSS 9th Floor
Conference Room, Albemarle Building, 325 N.
Salisbury Street, Raleigh, NC.

Jxeason for Proposed Action: To comply with
federal regulations for subsidized child day care in
homebased arrangements not subject to regulation
in North Carolina.

K^onunent Procedures: Comments may be pre-
sented in writing before or at the public hearing or
orally at the hearing. Time limits for oral remarks
may be imposed by the Commission Chairnuin.
Any person may request copies of this rule by
calling or writing to Don Bowen, Division of
Social Services, 325 N. Salisbury Street, Raleigh,
NC 27611. 919/733-3055.

f iscal Note: This Rule affects the expenditures or
revenues of local funds. A fiscal note was submit-
ted to the Fiscal Research Division on 10/27/92,
OSBM on 10/5/92, N. C League of Municipalities
on 10/27/92, and N. C. Association of County
Commissioners on 10/27/92.

CHAPTER 46 - DAY CARE RULES

SUBCHAPTER 46G - NONREGISTERED
DAY CARE HOME REQUIREMENTS

SECTION .0100 - GENERAL
REQUIREMENTS

.0101 DIVISION RESPONSIBILITY

(a) Th e Child Day Care Section in the Division
of Facility S e rvice s i s rcoponaibl e for th e ov e rall
manag e m e nt of the standards and proc e dur e s for
approving individual child car e arrang e m e nts in
which day car e fund s admini s t e r e d by th e D e part
m e nt of Human Re s ourc es ar e u se d to pay th e day
car e co s t s for childr e n of famili e s eligible for
assistance with day car e costs. — Each of the 100
county d e partments of social servic es i s r e sponsi
bl e for e nforcing s tandard s and procedur e s for
Individual Child Car e Arrang e ments in accordance
with rules in 10 NCAC 4 6G.

fb^ — A county d e partm e nt of social s e rvices may
contract with another public or private non profit

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1482

PROPOSED RULES

agency which i s not a provider of child day care
scrvicoij to perform the enforcement and manage
ment functions described in Paragraph (a) of this

Statiitof}- Authoriry G.S. 143B-153{2a).

.0103 DEFINITIONS

{ic) — "Individual child eare arrangement" (ICCA)
means a plan whereby day care is provided to a
child or the children of one family or of one
household in the home of the caregiver during a
portion of the day or night when the parent is not
in the home or i s otherwise unable to provide care.
It is permissible to use a caregiver who ha s chil

parent in understanding and utilizing an individual
child care arrangement to the child's benefit when

used.

the home even though her

dren of her own in
children and the children for whom she is provid
ing day care are unrelated. — Any individual child
care arrangem e nt — (ICCA) for which a vendor
payment will be made mu s t be approved in accor
dance with rules in thi s Subchapter and mu s t meet
other applicable rules in 10 NCAC 4 6.

fH For the purpose of vendor payment,

care in the child's home by a member
of the household will be re s tricted to
household — members — other — thftn — the
child's parent s or re s ponsible adult.

f3^ In s ome — instances. — it is — a matter of

judgment as to whether children arc to
be considered a part of on e family for
the purpose of malcing a payment for an
ICCA. Children will always be consid
cred as part of one family when one of
the following relation s hips exist:
(tM — children who are full or half siblings;
f©) — children v^'ho are first cousins;
fG^ — children v\'ho are — aunts or uncles,
niece s or nephews of other children in
care;
{&) — related — ef — unrelated — children — wh«
re s ide in the s ame hous e ho l d.
fb^ — In this Subchapter and in Subchapter 4 6H,
the term "parent" shall apply to the responsible
adult with v>'hom the child re s ides and who has
primary responsibility for the care and well being
of the child. — This includes natural and adoptive
parents, guardians, custodian s , or persons other
wise acting in place of the parent s , including foster
parents.

Statutory- Authorit}- G.S. 143B-153(2a).

.0104 COUNTY DEPARTMENT
RESPONSIBILITY

fa-) — The county department s hall work with the

an mdividual child care arrangement is

(fe) — TTic county department shall involve the
parent in the identification of an individual child
care arrangement caregiver.

(c) County department staff shall carefully assess
the use of an approved ICCA to assure that the
needs of the child and his family may be met.

(d) The county department s hall be responsible
for the approval and monitoring of all individual
child care arrangement s from which care is pur
chased with funds admini s tered by the Department
©f — Human — Re s ource s — according — 16 — standards
e s tabli s hed by the Social Services Commis s ion.

fe) — The county department shall provide a copy
of the individual child care arrangement standards
and checklist, along with a copy of the vendor
purchase agreement to the caregiver. — The county
department staf¥ s hall review standards and the
agre e ment with the caregiver for the purpose of
assuring the caregiver's knowledge of the program
and fiscal standard s applicable to the arrangement.

fft — The county department shall be responsible
for documenting — and — recording — information — t©
s how that the individual child care arrangement

meets required standards. Forms to document

approval and to record frequency and content of
monitoring will be provided to county departments

by the section.

fg-) — The county department s hall enter a vendor
purchase agreement with the provider and parent
on a standard form furnished by the section.

(h) The county department may provide, to the
extent fund s and staff are available. — technical
assistance and training to the provider to assure the
adequacy of the appro\'ed arrangement.

Statutory Authorit}' G.S. 143B-153(2a).

.0105 CONSULTANTS

The s ection provide s consultants to help county
department s — in the development. — approval — ofid
monitoring of individual child care arrangements.
County departments shall contact the s ection when
a ss istance i s needed.

Statutory- Authority G.S. 143B-153(2a).

.0106 IVEED TO MEET REQUIREMENTS

f*i — Each ICCA must be evaluated for eompli
ance annually.

{b) — When an arrangement is found to be out of
compliance with any requirement for participation,
the county department may s et a time limit for

1483

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NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

complianca. — If the arrangement faila to comply
within the set time limit, approval will be terminat

Statutory Authority G.S. 143B-153(2a).

.0108 APPEALS

Any ICCA deoiring to appeal a decision by the
county department of social service s s hall follow
the appeals procedures for grant in aid programs
pursuant to G.S. 108 A 79. — The director of the
county department shall provide the ICCA provid
cr or applicant with appropriate information about
the procedures for such an appeal.

Statutory Authority G.S.
108A-79; 143B-153(2a).

108A-71; 108A-73;

.0109 DEFINITION

(a) "Nonregistered" day care home means an
arrangement whereby day care js provided in a
home that is not subject to registration or licensure
pursuant to G.S. 1 10-86(2) ; i4j or the require-
ments of OS, 110-106 or OS, 110-106.1. Pay-
ment for care in the child's home by a member of
the household shall be restricted to household
members other than the child's parents or other
members of the child's income unit as defined in
10 NCAC 46H .0203. Grandparents, aunts, and
uncles, including step and great relationships, are
exempt from meeting the requirements in Rules
.0213 - .0214 of this Subchapter.

(b) The rules in this Subchapter shall apply only
to those nonregistered homes as defined in this
Rule which voluntarily choose to participate in the
state subsidized day care program.

Statutory Authority G.S. 143B-153(2a).

.0110 DIVISION RESPONSIBILITY

(a) The section, as defined m JO NCAC 46A
.0005. [s responsible for the administration of the
requirements and procedures for approving non-
registered day care homes in which day care funds
administered by the Department are used to subsi-
dize the day care cost for children of families
eligible for assistance.

(b) The number of nonregistered day care home
arrangements that shall be visited by the section
for the purpose of evaluating compliance with the
requirements for participation in the purchase of
care program shall be included in the monitoring
plan developed annually by the section.

section. The investigation may include an on-site
visit by an authorized representative of the Depart-
ment.

(d) Documentation of substantiated complaints
shall be available for parents to examine.

Statutory Authority G.S. 1 438-1 53(2a).

.0111 LOCAL PURCHASING AGENCY
RESPONSIBILITY

(a) The local purchasing agency shall be respon-
sible for reviewing the application and parent-
provider self-check list and for determining com-
pliance with the requirements established by the
Social Services Commission for all nonregistered
day care homes from which care is purchased with
funds administered by the Department.

(b) The county director of social services is
authorized to deny or revoke approval of an
arrangement where the caregiver or an individual
who resides m the home where care is provided
was found by the county director to be the perpe-
trator of abuse or neglect in accordance with G.S.
7A-544 or G.S. I08A. Article 6, and where
approval of the arrangement poses a threat to the
child's health or safety . Approval may also be
denied or revoked as described under the standard
set forth in this Rule when an investigation of
abuse or neglect is currently in process. Informa-
tion regarding the fact that the prospective provid-
er or individual hi the home has been reported or
investigated for alleged abuse or neglect shall not
be given to the parent or any other individual
unless such information is a matter of public
record.

Authority G. S. 143B-153(2a): 45 C. F. R. 98. 41: 45
C. F. R. 255. 4(c): 45 C. F. R. 257. 41 .

.0112 INITIAL APPROVAL

(a) Approval indicates that all applicable re-
quirements have been met.

(b) Temporary approval may be issued when an
arrangement does not comply with all requirements
but is expected to meet them within a specified
period. Temporary approval for enrollment may
be issued for a limited period of time not to exceed
30 days. For extenuating circumstances, the
purchasing agency shall have the discretion to
extend the 30 day period.

(c) When a provider fails to achieve compliance
before the end of the specified time period de-
scribed in Rule .01 12(b) of this Section, approval
may be denied.

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1484

PROPOSED RULES

Statiiion- Authorit}- G.S. 143B-153(2a).

.0113 MAINTAINING APPROVAL

(a) When a provider js found to be out of
compliance at any time with any requirement for
participation, the local purchasing agency or the
section shall set a specified time limit for compli-
ance. If the provider fails to comply within the
specified time limit, approval may be terminated.

(b) Each nonregistered day care home shall be
evaluated for compliance annually as described in
Rule .01 1 1 in this Section.

Statuiory Authority G.S. 143B-153(2a).

.0114 PAYMENT REQUIREMENTS

(a) Any nonregistered day care home that wishes
to participate in the state purchase of care pro-
gram, as defined in jO NCAC 46A .0005. must
comply u'ith the requirements for nonregistered
child care homes codified in Section .0200 of this
Subchapter, except as specified in Rule .0109 of
this Section.

(b) ]n order to receive payment for subsidized
child care, any nonregistered child day care home
arrangement must be enrolled and be in compli-
ance v.ith all applicable requirements of this
Subchapter.

Statuton- Authorit}- G.S. ]43B-153(2a).

.0115 .\PPEALS

Any nonregistered day care home desiring to
appeal a decision by the local purchasing agency
shall follow the appeals procedures for grant-in-aid
programs pursuant to G.S. 108A-79 and any
subsequent amendments. The local purchasing
agency shall pro\'ide the nonregistered day care
home provider or applicant with appropriate
information about the procedures for such an
appeal.

Statutory Authority- G.S. 143B-153(2a).

SECTION .0200 - REQUIREMENTS FOR
NONREGISTERED DAY CARE HOMES

.0201 APPROVAL AND REGISTRATION

(a) To obtain full approval status, an individual
child care — arrangement (ICCA) caregiver must
comply ^ith all standards for registration of child
dav oarc homo s . — These [standards and the s pceitic
mea s ures by which compliance with the s e s tan
dards is documented are publi s hed in the Manual
called Standards for Registration of Child Dav

Care Homes and the Self Check List which arc
available from the Child Day Care Section. Divi -
sion of Facility Services.

(b) Each individual child care arrangement must
also meet applicable state requirements for regis
tration of child day care homes as specified in 10
NCAC 3U .1700. with applicable regulations in 10
NCAC 3U and Article 7 of Chapter 1 10. and with
any other s tate and local regulations for the opera
tion of day care as specified by state and local
authorities.

Statutory Authority G.S. 143B-153(2a).

.0213 PARENT-PROVIDER CHECKLIST

Prior to approval, each provider must submit a
check list that indicates satisfactory compliance
with all applicable requirements. The checklist
must be completed and signed by the provider and
the parent.

Statutory Authority G.S. 143B-153(2a).

.0214 HEALTH AND SAFETY
STANDARDS

Each nonregistered day care home shall comply
with the following requirements in order to main-
tain a safe, healthy and sanitary environment for
children:
(I) A health and emergency information
form completed and signed by the child's
parents or guardian shall be on file for
each child who attends. The completed
form must be on file on the first day the
child attends with the exception of the
child's immunization record which must
be completed within 30 days after the
first day the child attends. A recom-
mended form is available from the sec-
tion. However, the provider may use
another form provided that form includes
the following information:
the child's name, address, and date of
birth;

the names of individuals to whom the
child may be released;
the general status of the child's health;

M
M

any allergies and/or restrictions on the
child's participation in activities with
specific instructions from the child's
parent or health professional;
the names and phone numbers of per-
sons to be contacted [n an emergency
situation;
the name and phone number of the

1485

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NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

is)

ill

(2)

13}

£4}
(51

(6}

(9)

(10)
ILU

(12)

child's health provider and preferred
hospital;

authorization for the provider to admin-
ister specified medication according to
the parent's instructions, if the parent
so desires;

authorization for the provider to seek
emergency medical care in the parent's
absence;

a record of the child's immunizations as
required pursuant to G.S. 130A-152.

The parent and provider must discuss and
agree upon the methods of discipline to
be used with each child. Corporal pun-
ishment shall be administered only with
the written consent of the parent.
All areas used by the children, indoors
and outdoors, shall be kept clean and
orderly and free of items which are haz-
ardous to children.

First-aid supplies shall be kept m a place
easily accessible to the provider but out
of the reach of children.
A working telephone shall be within
close proximity of the day care home
arrangement. A written plan shall be
developed that describes how the provid-
er will access emergency assistance.
Emergency phone numbers shall be
readily available.

To assure the safety of children whenever
they are transported, the provider, or any
other transportation provider, shall com-
ply with all applicable state and federal
laws concerning the transportation of
passengers. All children regardless of
age or location in the vehicle shall be
restrained by individual seat belts or child
restraint devices.

Garbage shall be stored in waterproof
containers with tight fitting covers.
The provider shall have sanitary toileting
facilities, and sanitary diaper changing
and handwashing facilities.

Soiled diapers shall be placed in a cov-
ered leak-proof container which is emp-
tied and cleaned frequently.
The provider shall wash her hands after
toileting and after diapering each child.
The provider shall complete and keep on
file a health self-questionnaire which
attests to the operator's physical and
emotional ability to care for children.
Each provider shall obtain written proof
that she is free of active tuberculosis

prior to initial approval and every two
years thereafter.

(13) The provider shall serve nutritious meals
and snacks appropriate in amount and
type of foods served for the ages of
children in care.

(14) The provider shall provide daily opportu-
nities for supervised outdoor play or
fresh air, weather permitting.

(15) The provider shall assure that the struc-
ture in which the day care arrangement is
located is fit for human habitation (i.e.
has clean drinking water, an approved
sanitary disposal system, and weather-
tight construction).

(16) Fuel burning heaters used when the
children are in care shall be properly
vented to the outside. Fuel burning
heaters , fireplaces, stoves, and portable
electric heaters, when in use, shall have
a securely attached guard .

( 17) A battery-operated smoke detector shall
be installed in the primary caregiving
area of each nonregistered day care
home.

Statutory Authority G.S. 143B-153(2a).

.0215 PROVIDER REQUIREMENTS

(a) Each provider shall ensure that the parent or
adult legally responsible for the child has unlimited
access to their child and to the provider during the
hours care is provided.

(b) No person shall be permitted to participate
as a child care provider in the purchase of care
program who has been convicted of a crime
involving child abuse, child neglect, or moral
turpitude, or who is an habitually excessive user of
alcohol or who illegally uses narcotics or other
impairing drugs, or who is mentally or emotionally
impaired to an extent that may be injurious to
children.

Statutory Authority G.S. 143B-153(2a).

TITLE 12 - DEPARTMENT OF JUSTICE

I\otice is hereby given in accordance with G.S.
150B-2L2 that the North Carolina Alarm Systetm
Licensing Board intends to amend rule cited as 12
NCAC U .0302.

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1486

PROPOSED RULES

1 he proposed effective date of this action is
February 1. 1993.

1 he public hearing will be conducted at 11:00
a.m. on November 17, 1992 at the Conference
Room. State Bureau of Investigations, 3320 Old
Garner Road, Raleigh, N. C.

Jxeason for Proposed Action: Amendment in-
creases the registration fee from $15.00 to $20.00
and increases the registration period from one (1)
to two (2) years.

i^onunenl Procedures: Interested persons max
present their views cither orally or in writing at
the hearing. In addition, the record of hearing
will be open for receipt of written comments until
December 2, 1992. Written comment must be
delivered to or mailed to: James F. Kirk, Alarm
Systems Licensing Board, 3320 Old Garner Road,
Raleigh. N. C. 27626-0500.

Jbditor's Note: This Rule has been filed as a
temporary amendment effective on October 6,
1992 for a period of 180 days or until the perma-
nent rule becomes effective, whichever is sooner.

CHAPTER n - N. C. ALARM SYSTEMS
LICENSING BOARD

SECTION .0300 - PROVISION FOR
REGISTRANTS

.0302 FEES FOR REGISTRATION

(a) Registration fees are as follows:

(1) Fift ee n dollar s ($15.00) Twenty dollars
($20.00) non-refundable annual biannu-
al registration fee;

(2) Ten dollar ($10.00) non-refundable
re-issue fee for lost cards or for regis-
tration of an employee who changes
employment to another licensee;

(3) Ten dollar ($10.00) non-refundable
annual multiple registration fee.

(b) Fees shall be paid in the form of a check or
money order made payable to the Alarm Systems
Licensing Board.

Statutory Authority G.S. 74D-7.

TITLE 15 A - DEPARTMENT OF
ENVIRONMENT, HEALTH. AND

NATURAL RESOURCES

iSotice is hereby given in accordance with G.S.
150B-21.2 that the Environmental Management
Commission intends to adopt rules cited as 15A
NCA C 2D . 0947 - . 0952 and amend rules cited as
15A NCAC 2D .0518, .0531 - .0532, .0901 -
.0903. .0907 - .0912, .0936, .1004; 2H .0603.

1 he proposed effective date of this action is
February 1. 1993.

1 he public hearing will be conducted at 7:00
p.m. on November 19. 1992 at the Char-
lotte/Mecklenburg Government Center. Ccmference
Center. Room 267. 600 East 4th Street. Charlotte,
NC 28202.

M\.eason for Proposed Actions: Extend Rules to
new nonattainment areas and to minor sources to
satisfy Federal Regulations.

i^omment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Any person desiring to comment for nwre
than three minutes is requested to submit a written
statement for inclusion in the record of proceed-
ings at the public hearing. The hearing officer
may limit oral presentation lengths to five minutes
if many people want to speak. The record of
proceedings will remain open for 30 days following
the hearings to receive additional written state-
ments. To be included, the statement must be
received by the Department within 30 daxs after
the hearing date. Comments should be sent to and
additional information concerning the hearing or
the proposals may be obtained by contacting:

Mr. Tito mas C. Allen
Division of Environmental Maruigement

P. O. Box 29535

Raleigh, North Carolina 27626-0535

(919) 733-1489.

CHAPTER 2 - ENVIRONTVIENTAL
MANAGEMENT

SUBCHAPTER 2D - AIR POLLLTION
CONTROL REQLTREMENTS

SECTION .0500 - EXHSSION CONTROL
STANDARDS

1487

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PROPOSED RULES

.0518 MISCELLANEOUS VOLATILE
ORGANIC COMPOUND
EMISSIONS

(a) This Regulation Rule shall be applicable to
all sources of volatile organic compound emissions
for which no other volatile organic compound
emission control standards are applicable, includ-
ing those standards found in Section .0900 of this
Subchapter as well as Regulations Rules .0524 and
.0525 of this Section.

(b) A person shall not place, store or hold in
any stationary tank, reservoir, or other container
with a capacity greater than 50,000 gallons, any
liquid compound containing carbon and hydrogen
or containing carbon and hydrogen in combination
with any other element which has a vapor pressure
of 1 .5 pounds per square inch absolute or greater
under actual storage conditions unless such tank,
reservoir, or other container:

( 1 ) is a pressure tank, capable of maintain-
ing working pressures sufficient at all
times to prevent vapor gas loss into the
atmosphere; or

(2) is designed and equipped with one of
the following vapor loss control devic-
es:

(A) a floating pontoon, double deck type
floating roof or internal pan type
floating roof equipped with closure
seals to enclose any space between the
cover's edge and compartment wall;
this control-equipment shall not be
permitted if the compound is a photo-
chemically reactive material having a
vapor pressure of 1 1 .0 pounds per
square inch absolute or greater under
actual storage conditions; all tank
gauging or sampling devices shall be
gas-tight except when tank gauging or
sampling is taking place;

(B) a vapor recovery system or other
equipment or means of air pollution
control as approved by the Director
which reduces the emission of organic
materials into the atmosphere by at
least 90 percent by weight; all tank
gauging or sampling devices shall be
gas-tight except when tank gauging or
sampling is taking place.

(c) A person shall not load in any one day more
than 20,000 gallons of any volatile organic com-
pound into any tank-truck, trailer, or railroad tank
car from any loading facility unless the loading
uses submerged loading through boom loaders
that extend down into the compartment being

loaded or by other methods approved by the
Director.

(d) A person shall not discharge from all sources
at any one plant site more than a total of 40
pounds of photochemically reactive solvent into the
atmosphere in any one day, from any article,
machine, equipment or other contrivance used for
employing, applying, evaporating or drying any
photochemically reactive solvent or substance
containing such solvent unless the discharge has
been reduced by at least 85 percent by weight.
Photochemically reactive solvents include any
solvent with an aggregate of more than 20 percent
of its total volume composed of the chemical
compounds classified in this Paragraph, or which
exceed any of the following percentage composi-
tion limitations, referred to the total volume of the
solvent:

(1) a combination of hydrocarbons, alco-
hols, aldehydes, esters, ethers, or
ketones having an olefinic or
cyclo-olefinic type of unsaturation
except perchloroethylene— five percent;

(2) a combination of aromatic hydrocarbons
with eight or more carbon atoms to the
molecule except ethylbenzene— eight
percent;

(3) a combination of ethylbenzene, ketones
having branched hydrocarbon structure,
trichloroethylene, or toluene--20 per-
cent.

Whenever any photochemically reactive solvent, or
any constituent of any photochemically reactive
solvent may be classified from its chemical struc-
ture into more than one of the groups of chemical
compounds in this Paragraph or chemical com
pounds , it shall be considered as a member of the
most reactive chemical compound group, that is,
that group having the least allowable percent of the
total volume of solvents.

(e) A source need not comply with Paragraphs
(b), (c), or (d) of this Regulation Rule if it com-
plies with otherwise applicable regulations rules in
Section .0900 of this Subchapter including Regula
tion .0902, APPLICABILITY, of this Subchapter,
notwithstanding, — among other thing s , — stze — aftd
location exemptions found in Paragraph — (b) of
Regulation .0902 of this Subchapter except Rules
.0902, .0950, .0951(a), and .0952 of this Subchap-
ter . However, the source shall not have to comply
with Regulation s Rules .0903 through .091 1 of this
Subchapter. This Paragraph shall not apply to
sources located m an area identified in Rule
.0902(a) of this Subchapter.

(f) Any source to which this Regulation Rule

7:15

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November 2, 1992

1488

PROPOSED RULES

applies shall be exempted from the requirements of
Paragraphs (b), (c), or (d) if control equipment is
installed and operated which meets the require-
ments of best available control technology as
defined in and determined by procedures of Regu
lation Rule .0530 of this Section. A new best
available control technology determination and
procedure need not be performed if in the judge-
ment of the Director a previous best available
control technology determination is applicable.

(g) Sources at a plant site with emission limits
established by Paragraphs (e) or (f) of this Regula
tioft Rule shall be excluded from consideration
when determining the compliance of any remaining
sources with Paragraph (d) of this Regulation
Rule .

Statuton- Authoritx G.S. 143-215. 3(a)(1);
143-215. 107(a)(5).

.0531 SOURCES EV NON ATTAINMENT
AREAS

(a) This Rule applies to certain new major
stationary sources and major modifications of
sources of volatile organic compounds or nitrogen
oxides which are located in one of the following
areas: an area which is designated by th e U.S.
Environmental Protection Agency (EPA) to be a
nonattainmcnt area a s of May 1. 1982.

(1) Davidson County.

(2) Durham County.

(3) Forsyth County.

(4) Gaston County.

(5) Guilford County.

(6) Mecklenburg County.
£21 Wake County,

(8) Dutchville Township in Granville
County, and

(9) that part of Davie County bounded by
the Yadkin Ri\er. Dutchmans Creek.
North Carolina Highway 801 . Fulton
Creek and back to Yadkin River.

This Rule applies to certain new major stationary
sources and major modifications of sources of
carbon monoxide which are located in Durham
County. Forsyth County. Mecklenburg County,
and Wake County.

(b) For the purpose of this Rule the definitions
contained in 40 CFR 51.165(a)(1) and 40 CFR
51.301 shall apply. The reasonable period speci-
fied in 40 CFR 51 . 165(a)(l)(vi)(C)(l) shall be
seven years.

( 1 ) complex sources of air pollution that
are regulated only under Section .0800

of this Subchapter and not under any
other regulation rule in this Subchapter;

(2) emission of pollutants at the new major
stationary source or major modification
located in the nonattainment area which
are pollutants other than the pollutant or
pollutants for which the area is
nonattainment (A major stationary
source or major modification that is
major for volatile organic compounds
or nitrogen oxides is also major for
ozone.);

(3) emission of pollutants for which the
source or modification is not major;

(4) a new source or modification which
qualifies for exemption under the provi-
sion of 40 CFR 51.165(a)(4); and

(5) emission of the following volatile or-
ganic compounds:

carbon monoxide.
carbon dioxide.

LAI

iDj
IE)
(A)

Xm-f

m
mi

iYi

carbonic acid.

metallic carbides or carbonates,
ammonium carbonate.

(F) methane,

(G) ethane,

(H ) trich lorof luoromethane
(chlorofluorocarbon 11),
( I ) dich lorodi fluoromethane
(chlorofluorocarbon 12),
( J ) c h 1 o ro d i f I u o ro m e t h an e
(chlorofluorocarbon 22),
(K) trifluoromethane (fluorocarbon
23),

( L ) trichlorotrifluoroethane
(chlorofluorocarbon 113),
(M) dichlorotetrafluoroethane
(chlorofluorocarbon 1 14),
(N ) chloropentafluoroethane
(chlorofluorocarbon 115),
(O) 1 , 1 , 1-trichloroethane (methyl
chloroform),

(P) dichloromethane (methylene chlo-
ride),

( ) dichlorotrifluoroethane
(hydrochlorofluorocarbon 123),
( R ) tetrafluoroethane
(hydro fluorocarbon 134a),
( S ) d i c h I o ro f I uo ro et h ane
(hydrochlorofluorocarbon 141b), and
( T ) c h 1 o r o d i f 1 u o r o e t h a n e
(hydrochlorofluorocarbon 142b),
2-chloro- 1,1,1 ,2-tetrafluoroethane
(hydrochlorofluorocarbon 124),
pentafluoroethane (hydro fluorocarbon

1489

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November 2, 1992

PROPOSED RULES

125),
£W} 1.1.2.2-tetrafluoroethane

(hydrofluorocarbon 134),
(X) 1 . 1 . 1 -trifluoroethane

(hvdrofluorocarbon 143a),
(Y) 1 , 1 -difluorocarborihydrofluorocarbon

152a), and
(Z) perfiuorocarbon compounds that fall
into these classes:
(i) cyclic, branched, or linear com-
pletely fluorinated alkanes;
(ii) cyclic, branched, or linear com-
pletely fluorinated ethers with no
unsaturations;
(iii) cyclic, branched, or linear com-
pletely fluorinated tertiary amines
with no unsaturations; and
(iv) sulfur containing perfluorocarbons
with no unsaturations and with
sulfur bonds only to carbon and
fluorine.

(d) Paragraphs (a) and (b) of R«le 15 NCAC 2H
.0601 are not applicable to any source to which
this Rule applies. The source shall apply for and
receive a permit as required in Paragraph (c) of
Rule 15 NCAC 2H .0601.

(e) To issue a permit to a source to which this
Rule applies, the Director director shall determine
that the source will meet the following require-
ments:

(1) The source will emit the nonattainment
pollutant at a rate no more than the
lowest achievable emission rate.

(2) The owner or operator of the proposed
new or modified source has demonstrat-
ed that all major stationary sources in
the State which are owned or operated
by this person (or any entity control-
ling, controlled by, or under common
control with this person) are subject to
emission limitations and are in compli-
ance, or on a schedule for compliance
which is federally enforceable or con-
tained in a court decree, with all appli-
cable emission limitations and standards
of this Subchapter which EPA has
authority to approve as elements of the
North Carolina State Implementation
Plan for Air Quality.

(3) The source will obtain sufficient emis-
sion reductions of the nonattainment
pollutant from other sources in the
nonattainment area so that the emissions
from the new major source and associ-
ated new minor sources will be less

than the emissions reductions by a ratio
of at least 1.00 to 1.15 for volatile
organic compounds and nitrogen oxides
and by a ratio of greater than one for
carbon monoxide . The baseline for this
emission offset shall be the actual emis-
sions of the source from which offset
credit is obtained. Emission reductions
must not include any reductions result-
ing from compliance (or scheduled
compliance) with applicable regulations
rules in effect prior to the application.
The difference between the emissions
from the new major source and associ-
ated new minor sources of carbon
monoxide and the emission reductions
must be sufficient to represent reason-
able further progress toward attaining
the Ambient Air Quality Standards.
The emissions reduction credits must
also conform to the provisions of 40
CFR 51. 165(a)(3)(ii)(A) through (G).
(4) The North Carolina State Implementa-
tion Plan for Air Quality is being car-
ried out for the nonattainment area in
which the proposed source is located.

(f) When a particular source or modification
becomes a major stationary source or major modi-
fication solely by virtue of a relaxation in any
enforceable limitation established after August 7,
1980, on the capacity of the source or modification
to emit a pollutant, such as a restriction on hours
of operation, then the provisions of this Rule shall
apply to the source or modification as though
construction had not yet begun on the source or
modification.

(g) To issue a permit to a source of a
nonattainment pollutant for which the stat e has
demonstrated to the satisfaction of the Administra
tor of EPA that attainment is not possible in the
area within the period prior to Deoembor 3 1 ,
1982, despite the implementation of all reasonably
available mea s ure s, the Director shall determine,
in addition to the other requirements of this Rule,
that an analysis (produced by the permit applicant)
of alternative sites, sizes, production processes,
and environmental control techniques for source
demonstrates that the benefits of the source signifi-
cantly outweigh the environmental and social costs
imposed as a result of its location, construction, or
modification.

(h) Approval of an application with regard to the
requirements of this Rule shall not relieve the
owner or operator of the responsibility to comply
fully with applicable provisions of other regula

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NORTH CAROLINA REGISTER

November 2, 1992

1490

PROPOSED RULES

tions rules of this Chapter and any other require-
ments under local, state, or federal law.

(i) When a source or modification subject to this
Rule may affect the visibility of a Class I area
named in Paragraph (c) of Rule .0530 of this
Section, the following procedures shall be fol-
lowed:

(1) The owner or operator of the source
shall provide an analysis of the impair-
ment to visibility that would occur as a
result of the source or modification and
general commercial, industrial and
other growth associated with the source
or modification.

(2) The Director shall provide written
notification to all affected Federal Land
Managers within 30 days of receiving
the permit application or within 30 days
of recei\'ing advance notification of an
application. The notification shall be at
least 30 days prior to the publication of
the notice for public comment on the
application. The notification shall
include a copy of all information rele-
\ant to the permit application including
an analysis provided by the source of
the potential impact of the proposed
source on visibility.

(3) The Director shall consider any analysis
concerning visibility impairment per-
formed by the Federal Land Manager if
the analysis is received within 30 days
of notification. If the Director finds
that the analysis of the Federal Land
Manager fails to demonstrate to his
satisfaction that an adverse impact on
visibility will result in the Class I area,
the Director shall provide in the notice
of public hearing on the application, an
e.xplanation of his decision or notice as
to where the explanation can be ob-
tained.

(4) The Director shall only issue permits to
those sources whose emissions will be
consistent with making reasonable
progress towards the national goal of
preventing any future, and remedying
any existing, impairment of visibility in
mandatory Class I areas when the im-
pairment results from man-made air
pollution. In making the decision to
issue a permit, the Director shall con-
sider the cost of compliance, the time
necessary' for compliance, the energy
and nonair quality environmental im-

pacts of compliance, and the useful life
of the source.
(5) The Director may require monitoring of
visibility in or around any Class I area
by the proposed new source or modifi-
cation when the visibility impact analy-
sis indicates possible visibility impair-
ment. The requirements of this Para-
graph shall not apply to nonprofit
health or nonprofit educational institu-
tions.

Sruruton- Authorin G.S. 143-215. 3(a)(l );
143-215. 107(a)(5): 143-215. 108(bj.

.0532 SOURCES CONTRIBUTING TO AN
AMBIENT VIOLATION

(a) This Regulation Rule applies to certain new
major stationan,' sources and major modifications
to which Rule .0531 of this Section does not apply
which arc located in an area which is de s ignated
by the — L ' .S. — Environm e ntal — Protection Agency
(EPA) to be an attainment or unclassifiablc area as
of May 1 , 19 8 3, and which would contribute to a
violation of a national ambient air quality standard
but which would not cause a new violation.

(b) For the purpose of this Regulation Rule the
definitions contained in Section II. A. of Appendix
S of 40 CFR Part 51 shall apply.

(1) complex sources of air pollution that
are regulated only under Section .0800
of this Subchapter and not under any
other regulation rule of this Subchapter;

(2) emission of pollutants for which the
area in which the new or modified
source is located is designated as
nonattainment;

(3) emission of pollutants for which the
source or modification is not major;

(4j emission of pollutants other than sulfur
dioxide, total suspended particulates,
nitrogen oxides, and carbon monoxide;

(5) a new or modified source whose impact
will increase not more than:
1 .0 ug/m ' of SOt on an annual basis.

(A)
(B)
(C)
(D)

(E)

(F)

5 ug/m"' of SO, on a 24-hour basis,

25 ug/m"' of SO, on a 3-hour basis,

1 .0 ug/m' of total suspended

particulates on an annual basis,

5 ug/m"' of total suspended

particulates on a 24-hour basis,

1 .0 us/m"' of NO, on an annual basis.

1491

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NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

(G) 0.5 mg/m'' of carbon monoxide on an

8-hour basisti
(H) 2 mg/m'' of carbon monoxide on a

one-hour basisf^
(I) 1.0 ug/m"' of PMIO on an annual

basisf:, or
(J) 5 ug/m- of PMIO on a 24-hour ba-

sisfj
at any locality that does not meet a
national ambient air quality standardrj

(6) sources which are not major unless
secondary emissions are included in
calculating the potential to emit;

(7) sources which are exempted by the
provision in Section II. F. of Appendix
S of 40 CFR Part 51;

(8) temporary emission sources which will
be relocated within two years; and

(9) emissions resulting from the construc-
tion phase of the source.

(d) Paragraphs (a) and (b) of R«4e 15A NCAC
2H .0601 are not applicable to any source to
which this Rule applies. The source shall apply
for and receive a permit as required in Paragraph
(c) of Rule 15A NCAC 2H .0601.

(e) To issue a permit to a new or modified
source to which this Regulation Rule applies, the
Director shall determine that the source will meet
the following conditions:

(1) The sources will emit the nonattainment
pollutant at a rate no more than the
lowest achievable emission rate.

(2) The owner or operator of the proposed
new or modified source has demon-
strated that all major stationary sources
in the State which are owned or operat-
ed by this person (or any entity control-
ling, controlled by, or under common
control with this person) are subject to
emission limitations and are in compli-
ance, or on a schedule for compliance
which is federally enforceable or con-
tained in a court decree, with all appli-
cable emission limitations and standards
of this Subchapter which EPA has
authority to approve as elements of the
North Carolina State Implementation
Plan for Air Quality.

(3) The source will satisfy one of the fol-
lowing conditions:

(A) The source will comply with Part (e)
(3) (A) of Regulation Rule .0531 of
this Section when the source is evalu-
ated as if it were in the nonattainment
area; or

(B) The source will have an air quality
offset, i.e., the applicant will have
caused an air quality improvement in
the locality where the national ambi-
ent air quality standard is not met by
causing reductions in impacts of other
sources greater than any additional
impact caused by the source for which
the application is being made. The
emissions reductions creating the air
quality offset shall be placed as a
condition in the permit for the source
reducing emissions. The require-
ments of this Part may be partially
waived if the source is a resource
recovery facility burning municipal
solid waste, the source must switch
fuels due to lack of adequate fuel
supplies, or the source is required to
be modified as a result of EPA regu-
lations and no exemption from such
regulations is available and if:
(i) the permit applicant demonstrates
that it made its best efforts to
obtain sufficient air quality offsets
to comply with this Part;
(ii) the applicant has secured all

available air quality offsets; and
(iii) the applicant will continue to seek
the necessary air quality offsets
and apply them when they become
available,
(f) At such time that a particular source or
modification becomes a major stationary source or
major modification solely by virtue of a relaxation
in any enforceable limitation established after
August 7, 1980, on the capacity of the source or
modification to emit a pollutant, such as a restric-
tion on hours of operation, then the provisions of
this Regulation Rule shall apply to the source or
modification as though construction had not yet
begun on the source or modification.

Statutory Authority G.S. 143-215. 3(a)(l );
143-215. 107(a)(5): 143-215. 108(h).

SECTION .0900 - VOLATILE ORGANIC
COMPOUNDS

.0901 DEFINITIONS

For the purpose of this Section, the following
definitions apply:
(1) "Coating" means a functional, protective,

or decorative film applied in a thin layer

to a surface.

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1492

PROPOSED RULES

(2)
(3)

(4)

(5)

(6)

(7)

(8)
(9)

(10)

(II;

"Coating applicator" means an apparatus
used to apply a surface coating.
"Coating line" means one or more appa-
ratus or operations in a single line where-
in a surface coating is applied, dried,
and/or or cured and which include a
coating applicator and flashoff area and
may include an oven or associated con-
trol devices.

"Continuous vapor control system"
means a vapor control system which
treats vapors displaced from tanks during
tilling on a demand basis without inter-
mediate accumulation.
"Delivered to the applicator" means the
condition of coating after dilution by the
user just before application to the sub-
strate.

"Flashoff area" means the space between
the application area and the oven.
"High solids coating" means a coating
which contains a higher percentage of
solids and a lower percentage of volatile
organic compounds and water thereby
potentially lowering volatile organic
compound emissions; usually paints with
greater than 60 percent solids by volume
are considered high solids coatings al-
though the term is often applied to any
coating that meets the Environmental
Protection Agency Control Technology
Guidelines.

"Hydrocarbon" means any organic com-
pound of carbon and hydrogen only.
"Incinerator" means a combustion appa-
ratus designed for high temperature
operation in which solid, semisolid,
liquid, or gaseous combustible wastes are
ignited and burned efficiently and from
which the solid and gaseous residues
contain little or no combustible material.
"Intermittent vapor control system"
means a vapor control system which
employs an intermediate vapor holder to
accumulate vapors displaced from tanks
during filling. The control device treats
the accumulated vapors only during
automatically controlled cycles.
"Loading rack" means an aggregation or
combination of loading equipment ar-
ranged so that all loading outlets in the
combination can be connected to a tank
truck or trailer parked in a specified
loading space.
"Low solvent coating" means a coating

which contains a substantially lower
amount of volatile organic compound
than conventional organic solvent borne
coatings; it usually falls into one of three
major groups of high solids, waterborne,
or powder coatings.

(13) "Organic material" means a chemical
compound of carbon excluding carbon
monoxide, carbon dioxide, carbonic acid,
metallic carbides or carbonates, and
ammonium carbonate.

(14) "Oven" means a chamber within which
heat is used to bake, cure, polymerize,
and/or or dry a surface coating.

(15) "Potential emissions" means the quantity
of a pollutant which would be emitted at
the maximum capacity of a stationary
source to emit the pollutant under its
physical and operational design. Any
physical or operational limitation on the
capacity of the source to emit a pollutant,
including air pollution control equipment
and restrictions on hours of operation or
on the type or amount of material
combusted, stored, or processed, shall be
treated as part of its design if the limita-
tion or the effect it would have on emis-
sions is described or contained as a con-
dition in the federally enforceable permit.
Secondary emissions do not count in
determining potential emissions of a
stationary source. Fugitive emissions
count, to the extent quantifiable, in deter-
mining the potential emissions only in
these cases:

petroleum refineries;
chemical process plants; and
petroleum storage and transfer units
with a total storage capacity exceeding
3(X),0(X) barrels.
"Prime coat" means the first film of
coating applied to a surface to protect it
or to prepare it to receive subsequent
coatings.

"Reasonably available control technolo-
gy" (also denoted as RACT) means the
lowest emission limit which a particular
source is capable of meeting by the appli-
cation of control technology that is rea-
sonably available considering technologi-
cal and economic feasibility. It may
require technology which has been ap-
plied to similar, but not necessarily iden-
tical, source categories.
(18) "Reid vapor pressure" means the absolute

(a)
(b)
(c)

(16)

(17)

1493

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NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

vapor pressure of volatile crude oil and
volatile nonviscous petroleum liquids
except liquefied petroleum gases as deter-
mined by American Society for Testing
and Materials, Part 17, 1973, D-323-72
(reapproved 1977).

(19) "Shutdown" means the cessation of oper-
ation of a source or a part thereof or
emission control equipment.

(20) "Solvent" means organic materials which
are liquid at standard conditions and
which are used as dissolvers, viscosity
reducers, or cleaning agents.

(21) "Standard conditions" means a tempera-
ture of 68°F and pressure of 29.92 inch-
es of mercury.

(22) "Startup" means the setting in operation
of a source or emission control equip-
ment.

(23) "Substrate" means the surface to which a
coating is applied.

(24) "Topcoat" means the final films of coat-
ing applied in a multiple or single coat
operation.

(25) "True vapor pressure" means the equilib-
rium partial pressure exerted by a petro-
leum liquid as determined in accordance
with methods described in American
Petroleum Institute Bulletin 2517, "Evap-
oration Loss from Floating Roof Tanks,"
1962.

(26) "Vapor collection system" means a vapor
transport system which uses direct dis-
placement by the liquid loaded to force
vapors from the tank into a vapor control
system .

(27) "Vapor control system" means a system
which prevents release to the atmosphere
of at least 90 percent by weight of organ-
ic compounds in the vapors displaced
from a tank during the transfer of gaso-
line.

(28) "Volatile organic compound" (also denot-
ed as VOC) means any compound of
carbon whose volatile content can be
determined by the procedure described in
Regulations Rules .091 3 or .0939 of this
Section excluding:

(a) carbon monoxide,

(b) carbon dioxide,

(d) metallic carbides or carbonates,

(e) ammonium carbonate,

(f) methane,

(g) ethane.

(h) trichlorofluoromethane

(chlorofluorocarbon 11),
(i) dichlorodifluoromethane

(chlorofluorocarbon 12),
(j) chlorodifluoromethane

(chlorofluorocarbon 22),
(k) trifluoromethane (fluorocarbon 23),
(1) trichlorotrifluoroethane

(chlorofluorocarbon 113),
(m) dichlorotetrafluoroethane

(chlorofluorocarbon 114),
(n) chloropentafluoroethane

(chlorofluorocarbon 115),
(o) 1,1,1-trichlorethane (methyl chloro-
form),
(p) dichloromethane (methylene chloride),
(q) dichlorotrifluoroethane

(hydrochlorofluorocarbon 123),
(r) tetrafluoroethane (hydrofluorocarbon

134a),
(s) dichlorofluoroethane

(hydrochlorofluorocarbon 141b), as4
(t) chlorodifluoroethane

(hydrochlorofluorocarbon 142b)Tj
(u) 2-chloro- 1 , 1 , 1 ,2- tetrafluoroethane

(hydrochlorofluorocarbon 124),
(v) pentafluoroethane (hydrofluorocarbon

125),
(w) 1 . 1 ,2,2-tetrafluoroethane

(hydrofluorocarbon 134),
(x) 1 , 1 . 1 -trifluoroethane

(hydrofluorocarbon 143a),
(y) 1 ,1-difluorocarbon (hydrofluorocarbon

152a), and
(z) perfluorocarbon compounds that fall

into these classes:
cyclic, branched, or linear completely
fluorinated alkanes;
cyclic, branched, or linear completely
fluorinated ethers with no
unsaturations;

ii)
iiii

(iii)
(iv)

cyclic, branched, or linear completely
fluorinated tertiary amines with no
unsaturations; and

sulfur containing perfluorocarbons
with no unsaturations and with sulfur
bonds only to carbon and fluorine.

Statutory A uthority G.S. 143-215. 3(a)(1).

.0902 APPLICABILITY

(a) With the exceptions stated in Paragraph ftv)
(c) of this Regulation Rule , this Section applies^ hi
accordance with Rules .0907 and .0946 of this
Section, throughout the entire State of — North

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1494

PROPOSED RULES

Carolina, to all sources of \olatile organic com-
poundsT in the following counties and parts of
counties:

( 1 ) Da\ idson.

Durham.

i2i

iii
£41
15}
16]

ill
18)

19]

Forsyth.

Gaston.

Guilford.

Mecklenburg.

Wake.

Dutchville Township in Granville
Count\-. and

that part of Davie County bounded by
the Yadkin Ri\er. Dutchmans Creek.
North Carolina Highway 801 . Fulton
Creek and back to Yadkin River.
(bi Rules .0925. .0926. .0927. .0928. .0932.

and .0933 of this Section apply, in accordance
with Rule .0946 of this Section, to all sources of
volatile organic compounds located m areas not
named in Paragraph (a) of this Rule.
^hj icj This Section does not apply to:
{!) sources whose emissions of volatile
organic compounds are not more than
15 pounds per day (This Subparagraph
does not apply to the manufacture and
use of cutback asphalt.);

i^ sources at a facility where the total of

potential emissions of volatile organic
compounds from all stationan,' sources
at the facility is less than 100 tons per

yeaf (This — Subparagraph — dees — net

apply to the manufacture and u s e of
cutback — asphalt — ©f — te — Rules — .0925.
.0926. .0927. .0928. .0932. and .0933
of thi s Section. I;

f^-) facilitie s located in an area vxhich i s not

designated b\ the L .S. Environmental

Protection /V g c n c _\ te be a

nonattainment area for photochemical
oxidants or ozone as of April 30. 1979
(Thi s — Subparagraph — does — net — apply
Rules .0925. .0926. .0927. .092 8 .
.0932. and .0933 of this Section.);

f4-) to the manufacture and use of cutback

asphalt s in an area which i s not desig
nated by the U.S. En\ ironmental Pro
teetion Agency to be a nonattainment
area — fer — photochemica l — oxidants — ef
ozone as of April 30. 1979;
iSj £2] sources used exclusively for chemi-
cal or physical analysis or determina-
tion of product quality and commercial
acceptance provided:
(A) The operation of the source is not an

integral part of the production pro-
cess; and

(B) The emissions from the source do not
exceed 800 pounds per calendar
month; and

i€) emissions — of volatile — organic — com

pounds which arc subject to limitation
under Regulations .052 4 or .0525 of
this Subchapter; or
•f?^ Qj emissions of volatile organic com-
pounds during startup or shutdown
operations from sources which use
incineration or other types of combus-
tion to control emissions of volatile
organic compounds whenever the
off-gas contains an explosive mixture
during the startup or shutdown opera-
tion if the exemption is approved by the
Director.
fe^ id] Sources whose emissions of \olatile
organic compounds are not subject to limitation
under this Section may still be subject to emission
limits on volatile organic compounds in Regulation
.0518. Rule .0524. or .0525 of this Subchapter.

Slalutc>ry Amhority
143-215. 107(a)(5).

G.S. 143-215. 3(aj(lj;

.0903 RECORDKEEPING: REPORTEVG:
MONITORING

(a) This Regulation Rule applies to sources
subject to Regulation s Rules in this Section.

(b) The owner or operator of any volatile organ-
ic compound emission source or control equipment
shall maintain:

(1)
(2)

(3)

(4)

(5)

records detailing all activities relating to
any compliance schedule in this Sec-
tion;

records detailing all malfunctions under
Regulation Rule .0535 of this Subchap-
ter;

records of all testing conducted under
Regulations Rules in this Section;
records of all monitoring conducted
under Paragraph (d) of this Regulation
Rule; and

records necessary to determine compli-
ance as required by Paragraph (d) of
this Regulation Rule ,
(c) When requested by the Director director , the
owner or operator of any volatile organic com-
pound emission source or control equipment shall
submit reports detailing the following:

1495

7:15

XORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

(1) General information.

(A) Type of source and process descrip-
tion.

(B) Schedule of operation.

(D) Quantity and type of wash and
clean-up solvents used each day for
each source.

(2) Coating line information.

(A) Method of application.

(B) Drying method used and minimum
temperature.

(D) Substrate form.

(E) Type of coatings applied, number of
each coating type applied, and quanti-
ty of each type of coating applied per
day.

(F) Percent by weight of volatile organic
compounds content of each coating
applied.

(G) Percent by volume of solids content
of each coating applied.

(H) Method used to determine volume
percent solids content of coatings.

(I) Type and quantity of diluents added to
each coating and percent by weight of
volatile organic content of each dilu-
ent.

(3) Control equipment.

(A) Thermal incinerator:

(i) Combustion temperature,
(ii) Residence time.

(B) Catalytic incinerator:

(i) Exhaust gas temperature.

(ii) Change in temperature across

catalyst bed.
(iii) Residence time.
(iv) Date of last change of catalyst

bed.
(v) Date of last catalyst test and

results of test.

(i) Inlet temperature of cooling medi-
um.

(ii) Outlet temperature of cooling
medium.

(D) Emission test results:

(i) Inlet volatile organic compound

concentration.
(ii) Outlet volatile organic compound

concentration,
(iii) Explanation of how inlet and

outlet concentrations have been
determined,
(iv) Date when these concentrations
were last determined.
(E) Capture system:

(i) Type of capture system,
(ii) Efficiency of capture system,
(iii) Explanation of how capture effi-
ciency has been determined.
The owner or operator of the source shall also
provide any other pertinent information to the
director when requested.

(d) The owner or operator of any volatile organ-
ic compound emission source or control equipment
shall:

(1) install, operate, and maintain process
and/or and control equipment monitor-
ing instruments or procedures as neces-
sary to comply with Paragraph Para-
graphs (b) and (c) of this Regulation
Rule; and

(2) maintain, in writing, data and/or and
reports relating to monitoring instru-
ments or procedures which will, upon
review, document the compliance status
of the volatile organic compound emis-
sion source or control equipment to the
satisfaction of the Director; such data
and reports shall, as a minimum, be
maintained daily.

(e) Copies of all records and reports under
Paragraphs (b), (c), and (d) of this Regulation Rule
shall be retained by the owner or operator for a
minimum of two years after the date on which the
record was made or the report submitted. Howev-
er, the Director may extend the retention period in
particular instances.

(f) Copies of all records and reports under this
Section shall be made available within a reasonable
time to the Director upon written request.

Statutory Authority
143-215. 107(a)(5).

G.S. 143-215. 3(a)(1);

.0907 COMPLIANCE SCHEDULES FOR
SOURCES IN NONATTAESfMENT
AREAS

(a) — With the exception stated in Regulation
.0910 or .0911 of this Section, the owner or
operator of an existing (as of June 30. — 1979)
volatile — organic compound emission source pro
po s ing — te — install — aad — operate — volatile — organic
compound — emission — control — equipment — and/or
replace process equipment to comply with Regula
tions .0917 through .0931 of this Section s hall

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1496

PROPOSED RULES

achieve — Final complinnee. — determined — in aeoor
dance with Regulations .0912 through .0016 and
.0939 through .09 4 2 of this Section, before Augu s t
1, 1981.

fte^ — With the exception stated in Regulation s

.0910

tO»W

of this Section, the owner or

operator of an existing (as of June 30. — 1980)
volatile organic compound emi ss ion s ource propos
ing to install and operate volatile organic com
pound — emission — control — equipment — and/or — t©
replace process equipment to comp l y with Regula
tions .0932 through .0938 of this Section shall
achieve final compliance, determined in aeeor
dance v\ith Regulations .0912 through .0916 and
.0939 through .09 4 2 of this Section, before August

498;

fe^ With the exception stated in Regulation

.0910 of this Section, the owner or operator of a
ftev.^ — volatile — organic — compound — s ource — not — rn
existence as of June 30. 1979. or June 30. 1980,
s hall comply with Regulations .0917 through .0931
or Regulation s .0932 through .0938. respectively,
of this Section upon source start up.

(a) With the exceptions in Paragraph (b) of this
Rule, this Rule applies to alj sources covered by
Paragraph (a) of Rule .0902 of this Section.

(b) This Rule does not apply to:

( I ) sources in Mecklenburg County to
which Rules .0917 through .0938 apply
and which are located at a facility
where the total potential emissions of
volatile organic compounds from ail
stationary sources at the facility is 100
tons per year or more, or
sources covered under Rule .0946 of

ill

this Section.

(c) The owner or operator of any source subject
to this Rule who proposes to comply with a rule in
this Section by installing emission control equip-
ment, replacing process equipment, or modifying
existing process equipment, shall adhere to the
following increments of progress and schedules:
( 1 ) A permit application and a compliance
schedule shall be submitted before

August 1. 1993:

12]

iAi

iBj

The compliance schedule shall contain
the following increments of progress:
a date by which contracts for the
emission control system and process
equipment shall be awarded or orders
shall be issued for purchase of com-
ponent parts;

a date by which on-site construction
or installation of the emission control
and process equipment shall begin:

and
(C) a date by which on-site construction
or installation of the emission control
and process equipment shall be com-
pleted.
(3) Final compliance shall be achieved by:

(A) December 1, 1994, where compliance
is achieved by installing control
equipment or replacing process equip-
ment, or

(B) August J_, 1994, where compliance is
achieved by modifying existing pro-
cess equipment.

The owner or operator shall certify to the Director
within five days after the deadline, for each incre-
ment of progress, whether the required increment
of progress has been met.

(d) The owner or operator of any source subject
to this Rule who proposes to comply with a rule in
this Section by using low solvent content coating
technology shall adhere to the following incre-
ments of progress and schedules:

(1 ) The permit application and a compli-
ance schedule shall be submitted before

August 1, 1993.

iA]

13]

IB]
iC]

£D]

iEi

iA]

The compliance schedule shall contain
the following increments of progress:
a date by which research and develop-
ment of low solvent content coating
shall be completed if the Director
determines that low solvent content
coating technology has not been suffi-
ciently researched and developed;
a date by which evaluation of product
quality and commercial acceptance
shall be completed;
a date by which purchase orders shall
be issued for low solvent content
coatings and process modifications;
a date by which process modifications
shall be initiated; and
a date by which process modifications
shall be completed and use of low
solvent content coatings shall begin.
Final compliance shall be achieved by:
July L, 1995, where compliance is
achieved by using low solvent content
coating where the Director determines
that low solvent content coating tech-

IB]

nology has not been sufficiently re-
searched and developed; or
January f^ 1995. where compliance is
achieved by using low solvent content
coating where the Director determines
that low solvent content coating tech-

1497

7:15

NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

nology has been sufficiently re-
searched and developed.
The owner or operator shall certify to the Director
within five days after the deadline, for each incre-
ment of progress, whether the required increment
of progress has been met.

(e) The owner or operator of sources subject to
this Rule shall, if the Director requires a test to
demonstrate that compliance has been achieved,
conducted a test and submit a final test report
within six months after the stated date of final
compliance.

(f) With such exception as the Director may
allow, the owner or operator of any source subject
to this Rule shall continue to comply with 15A
NCAC 2D .0518 until such time as the source
complies with applicable rules in this Section or
until the final compliance date set forth in this
Rule, whichever comes first. The Director may
allow the following exceptions:

(1 ) testing coating materials;

(2) making or testing equipment or process
modifications; or

(3) adding or testing control devices.

(g) The owner or operator of any new source of
volatile organic compounds not m existence or
under construction a^ of January 30. 1993. shall
comply with all applicable rules in this Section
upon start-up of the source.

Statutory Authority G.S. 143-215. 3(a}(l );
143-215.68: 143-215. 107(a)(5).

.0910 ALTERNATIVE COMPLIANCE
SCHEDULES

(a) If the Director finds that the application of a
compliance schedule in Regulations .0907 through
t0909 Rule .0907 of this Section would be techno-
logically or economically infeasible for a source,
he may promulgate a different schedule for that
source.

(b) The owner or operator of a volatile organic
compound source affected by Regulations .0917
through .0931 of a rule in this Section may submit
to the Director a proposed alternative compliance
schedule if:

( 1 ) The proposed alternative compliance
schedule is submitted before January 1,
+980 August L 1993 ; and

(2) The final control plans for achieving
compliance are submitted simultaneous-
ly; ftftd

(3) The alternative compliance schedule
contains the same increments of prog-
ress as the schedule for which it is

proposed as an alternative; and
(4) Sufficient documentation and certifica-
tion from appropriate suppliers, con-
tractors, manufacturers, or fabricators
are submitted to justify the dates pro-
posed for the increments of progress.

(c) The owner or operator of a volatile organic
compound source affected by a rule in this Section
may submit to the Director an alternative compli-
ance schedule for the phase-out or shut-down of a
volatile organic compound source, if:

(1) The proposed alternative compliance
schedule is submitted before August \^
1993; and

(2) The final control plans for achieving
compliance with rules of this Section
are submitted simultaneously.

(d) All alternative compliance schedules pro-
posed or promulgated under this Rule shall provide
for compliance with the a pplicable rules as expedi-
tiously as practicable but not later than August l^
1995.

fe) (e) Any schedule approved under this Rcgu
lotion Rule may be revoked at any time if the
source does not meet the increment of progress
stipulated.

(d) (f) When an alternate compliance schedule is
promulgated under this Regulation Rule , the
permit shall contain a condition stating the compli-
ance schedule.

Statutory Authority G.S. 143-215. 3(a)(1);
143-215. 107(a)(5).

. 09 1 1 EXCEPTION FROM

COMPLIANCE SCHEDULES

Regulations Rule .0907 through .0910 of this
Section will not apply to sources which that are in
compliance with applicable Rules Regulations
.0917 through .0931 of this Section before July 1,
1979 February \^ 1993, and that have determined
and certified compliance to the satisfaction of the
Director before October I, 1979, May i, 1993.
or in compliance with Regulation .0932 — through
.0938 of this Section before July 1, 1980 and have
determined and certified compliance to the aatisfac
tion of the Director before October I, 1980.

Statutory Authority G.S. 143-215. 3(a)(1);
143-215. 68; 143-215. 107(a)(5).

.0912 GENERAL PROVISIONS ON TEST
METHODS AND PROCEDURES

(a) The owner or operator of any volatile organ-
ic compound source required to comply with

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1498

PROPOSED RULES

regulations rules in this Section shall, at his own
expense, demonstrate compliance by the methods
described in Regulations Rules .0912 through
.0916 and .0939 through .0942 of this Section.
The owner or operator of a volatile organic com-
pound source shall demonstrate compliance when
the Director requests such demonstration. The
Director shall explain to the owner or operator the
basis for requesting a demonstration of compliance
and shall allow reasonable time for testing to be
performed. All tests shall be made by, or under
the direction of, a person qualified by training or
experience in the field of air pollution testing.

(b) Volatile organic compound emissions com-
pliance testing shall be allowed and the results
shall be accepted, only if the Director has been
notified as required by Paragraph (c) of this
Regulation Rule and if the Director has granted
approval.

(c) Any person proposing to conduct a volatile
organic compound emissions test shall notify the
Director at least 21 days before beginning the test
so that the Director may at his option observe the
test. Any person notifying the Director of a
proposed volatile organic compound emissions test
shall include as part of notification the following
minimum information:

(1) a statement indicating the purpose of
the proposed test; an^

(2) a detailed description of the facility to
be tested; and

(3) a detailed description of the test proce-
dures, equipment, and sampling sites;
and

(4) a timetable, setting forth the dates on
which:

(A) The testing will be conducted; and

(B) Preliminary test results will be report-
ed (not later than 30 days after sample
collection); and

(d) If the volatile organic compound emissions
test shows noncompliance, the owner or operator
of the volatile organic source shall submit along
with the final test report proposed corrective
action.

(e) For compliance determination, the owner or
operator of any volatile organic compound emis-
sions source shall be responsible for providing:

( 1 ) sampling ports, pipes, lines, or appurte-
nances for the collection of samples and
data required by the test procedure; aftd

(2) safe access to the sample and data

collection locations; and
(3) light, electricity, and other utilities
required for sample and data collection.

(f) Compliance shall be determined on a
line-by-line basis using the more stringent of the
following two:

(1) Compliance shall be determined on a
daily basis for each coating line using a
weighted average, that is, dividing the
sum of the mass (pounds) of volatile
organic compounds in coatings con-
sumed on that coating line, as received,
and the mass (pounds) of volatile organ-
ic compound solvents added to the
coatings on that coating line by the
volume (gallons) of coating solids
consumed during that day on that coat-
ing line; or

(2) Compliance shall be determined as
follows:

(A) When low solvent or high solids
coalings are used to reduce emissions
of volatile organic compounds, com-
pliance shall be determined instanta-
neously.

(B) When add on control devices, e.g.,
solvent recovery systems or incinera-
tors, are used to reduce emissions of
volatile organic compounds, compli-
ance shall be determined by averaging
emissions over a one-hour period.

(g) The Director director may authorize the
Division of Environmental Management to conduct
independent tests of any source subject to a regula
tt&fi rule in this Section to determine the compli-
ance status of that source or to verify any test data
submitted about that source. Any test conducted
by the Division of Environmental Management
using the appropriate testing procedures described
in this Section shall have precedence over all other
tests. The United States Environmental Protection
Agency (EPA) may verify any test submitted by
the owner or operator of a source, and any test
conducted by EPA using the appropriate testing
procedures described in this Section shall have
precedence over tests conducted by the owner or
operator of the source.

Statutory Authority G.S. 143-215. 3(a)(1):
143-215. 107(a)(5).

.0936 GRAPHIC ARTS

(a) For the purpose of this Regulation Rule , the
following definitions apply:

(1) "Flexographic printing" means the

1499

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NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

application of words, designs and pic-
tures to a substrate by means of a roll
printing technique in which both the
pattern to be applied is raised above the
printing roll and the image carrier is
made of rubber or other elastometric
materials.

(2) "Packaging rotogravure printing" means
printing with a gravure press upon
paper, paper board, metal foil, plastic
film, and other substrates, which are, in
subsequent operation, formed into
containers and labels for articles to be
sold.

(3) "Printing" means the formation of
words, designs and pictures, usually by
a series of application rolls each with
only partial coverage.

(4) "Publication rotogravure printing"
means printing upon paper which is
subsequently formed into books, maga-
zines, catalogues, brochures, directo-
ries, newspaper supplements, and other
types of printed materials.

(5) "Roll printing" means the application of
words, designs and pictures to a sub-
strate by means of hard rubber or steel
rolls.

(b) This Regulation Rule applies to:

(1) flexographic printing, packaging roto-
gravure printing and publication roto-
gravure printing operations; and

(2) machines that have both coating units
and printing units.

(c) This Rule does not apply to facilities where
the potential emissions of volatile organic com-
pounds is less than 100 tons per year.

(d) fe) Emissions of volatile organic compounds
from any printing press tmit or drying oven of a
printing operation subject to this R e gulation Rule
shall not be discharged into the atmosphere unless:

( I ) The captured volatile organic compound
emissions are reduced by at least 90
percent by an incineration system or 95
percent by a carbon adsorption system
or any other control system; and:

(A) For packaging rotogravure printing
operations, at least 65 percent overall
reduction of the volatile organic com-
pound emissions is achieved;

(B) For publication rotogravure printing
operations at least 75 percent overall
reduction of the volatile organic com-
pound emissions is achieved; and

at least 60 percent overall reduction
of the volatile organic compound
emissions is achieved;

(2) The solvent portion of the ink, as it is
applied on the substrate, consists of at
least 75 percent water by volume and
no more than 25 percent organic sol-
vent by volume;

(3) The ink contains by volume at least 60
percent nonvolatile material;

(4) The printing system uses a combination
of solvent-borne and water-borne ink
such that at least a 70 percent by vol-
ume overall reduction in solvent usage
is achieved when compared to all
solvent-borne ink usage, or

(5) The ink, including any solvents that
may be added to it, contains no more
than 0.5 pounds of volatile organic
compounds per pound of solids in the
ink; only flexographic printing and
packaging rotogravure printing may use
this option.

(e) i4j When a facility complies with this Rcgu
lation Rule using the provision of Subparagraph {ej
(d) (4) of this Regulation Rule, the permit shall
contain a condition stating the maximum quantity
of solvent-borne ink that each printing unit may
use or that the facility as a whole may use.

(f) Equivalency calculations for emissions
trading, cross-line averaging, or determining
compliance with add-on control equipment shall be
performed in units of pounds of volatile organic
compounds per gallon of solids.

Statutory Authority G.S.
143-215. 107(a)(5).

143-215. 3(a)(1);

.0947 MAIVUFACTURE OF SYNTHESIZED
PHARMACEUTICAL PRODUCTS

(a) For the purposes of this Rule, the following
definitions apply:

(1) "Production equipment exhaust system"
means a device for collecting and di-
recting out of the work area fugitive
emissions of volatile organic com-
pounds from reactor openings, centri-
fuge openings, and other vessel open-
ings for the purpose of protecting work-
ers from excessive exposure to volatile
organic compounds.

(2) "Synthesized pharmaceutical manufac-
turing" means manufacture of pharma-
ceutical products by chemical synthesis.

(b) This Rule applies to synthesized pharmaceu-

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1500

PROPOSED RULES

lical products manufacturing facilities.

(c) The owner or operator of a synthesized
pharmaceutical products manufacturing facility
shall control the emissions of volatile organic
compounds from:

( 1 ) reactors. distillation operations.
cr\'stallizers. centrifuges, and vacuum
dr\'ers that have the potential to emit 15
pounds per day or more of volatile
organic compounds with surface con-
densers that meet the requirements of
Paragraph (el of this Rule or equivalent
controls:

(2) air dr\'ers and production equipment
exhaust system by reducing emissions
of volatile organic compounds:

(A) by 90 percent |f they are 330 pounds
per day or more; or

(B) to 33 pounds per day if they are less
than 330 pounds per day:

(3) storage tanks by:

(A) providing a \apor balance system or
equivalent control that is at least 90
percent effective i_n reducing emis-
sions from truck or railcar deliveries
to storage tanks with capacities great -
er than 2.000 gallons that store vola-
tile organic compounds with a vapor
pressure greater than 4. 1 pounds per
square inch at 68' F: and

(B) installing pressure/vacuum conserva-
tion xents. which shall be set +. 0^
inches of water unless a more effec-

tive control system [s used, on all
storage tanks that store volatile organ-

ic compounds with a vapor pressure
greater than 1 .5 pounds per square
inch at 68 "F:

(4) centrifuges containing volatile organic
compounds, rotary vacuum filters pro-
cessing liquid containing volatile organ-
ic compounds, and other filters having
an exposed liquid surface where the
liquid contains volatile organic com-
pounds by enclosing those centrifuges
and filters that contain or process vola-
tile organic compounds u'ith a vapor
pressure of (h5 pounds per square inch
or more at 68°F; and

(5) in-process tanks by installing covers,
which shall remain closed except when
production, sampling, maintenance, or
inspection procedures require operator
access:

(d) The owner or operator of a synthesized

pharmaceutical products manufacturing facility
shall repair as expeditiously as possible all leaks
from which liquid volatile organic compounds can
be seen running or dripping.

(e) If surface condensers are used to comply
with Subparagraph (c)(1) of this Rule: the con-
denser outlet temperature shall not exceed:

(1) - 1 3 °F when condensing volatile organic

compounds of vapor pressure greater

than 5.8 psi:

5"F when condensing volatile organic

141

£5}

compounds of vapor pressure greater

than 2.9 psi:

32 "F when condensing volatile organic

compounds of vapor pressure greater

than 1 .5 psi:

50 "F when condensing volatile organic

compounds of vapor pressure greater

than 1 .0 psi: or

77 °F when condensing volatile organic

compounds of vapor pressure greater

than 0.5 psi.

Statutory Authorit}- G.S. 143-215. 3(a)(I );
143-215. 107(a)(5).

.0948 VOC ENnSSIONS FROM TRANSFER
OPERATIONS

(a) This Rule applies to operations that transfer
volatile organic compounds from a storage tank to
tank-trucks, trailers, or railroad tank car that are
not covered by Rule .0926. .0927. or .0928 of this
Section.

(b) The owner or operator of a source to which
this Rule applies shall not load in any one day
more than 20.000 gallons of any volatile organic
compound with a vapor pressure of 1 .5 pounds per
square inch or greater under actual conditions into
any tank-truck, trailer, or railroad tank car from
any loading facility unless the loading uses sub-

merged loading through boom loaders that extend
down into the compartment being loaded or by
other methods approved by the Director.

Siaiuton, Authority
143-215. 107(a)(5).

G.S. 143-215. 3(a)(1);

.0949 STORAGE OF \nSCELLANEOUS

VOLATILE ORGANIC COMPOL'NDS

(a) TTiis Rule applies to the storage of volatile
organic compounds in stationary' tanks, reservoirs.
or other containers with a capacity greater than
50.000 gallons that are not covered by Rule .0925
or .0933.

(b) The owner or operator of any source to

1501

7:15

NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

which this Rule applies shall not place, store, or
hold in any stationary tank, reservoir, or other
container with a capacity greater than 50.000
gallons, any liquid volatile organic compound that
has a vapor pressure of 1 .5 pounds per square inch
absolute or greater under actual storage conditions
unless such tank, reservoir, or other container:

(1 ) is a pressure tank capable of maintain-
ing working pressures sufficient at all
times to prevent vapor gas loss into the
atmosphere; or

(2) is designed and equipped with one of
the following vapor loss control devic-
es:

(A) a floating pontoon, double deck type
floating roof or internal pan type
floating roof equipped with closure
seals to enclose any space between the
cover's edge and compartment wall;
this control equipment shall not be
permitted for volatile organic com-
pounds with a vapor pressure of 1 1 .0
pounds per square inch absolute or
greater under actual storage condi-
tions; all tank gauging or sampling
devices shall be gas-tight except when
tank gauging or sampling js taking
place;

Statutory Authority G.S.
143-215. 107(a)(5).

143-215. 3(a)(1);

.0950 INTERIM STANDARDS FOR

CERTAIN SOURCE CATEGORIES

(a) This Rule applies to the following types of
sources:

tobacco processing,
textile dyeing.
textile coating.

lii
12]

i3i
141
(5)
16)

18)
19)

bakeries.

Christmas ornament manufacturing.

wastewater treatment operations at beer

brewers,

fiberglass yacht manufacturing,

soybean processing,

paint and coating manufacturing .

(10) synthetic organic chemical manufactur-
ing industry distillation and reactors,

(1 1) synthetic organic chemical manufactur-
ing industry batch operations,

(12) petroleum and industrial wastewater
treatment plants,

(13) wood furniture finishing,

(14) plastic parts coating operations.

(15) web offset lithography.

(16) autobody refmishing.

(17) industrial cleanup solvents.

(18) aerospace, and

(19) marine coatings.

(b) The owner or operator of a source to which
this Rule applies shall not emit volatile organic
compounds into the atmosphere in any one day
from all sources at the plant site at which the
source is located more than a total of 40 pounds of
photochemically reactive solvent from any article,
machine, equipment or other contrivance used for
employing, applying, evaporating or drying any
photochemically reactive solvent or substance
containing such solvent unless the discharge has
been reduced by at least 85 percent by weight.
Photochemically reactive solvents include any
solvent with an aggregate of more than 20 percent
of its total volume composed of the chemical
compounds classified in this Paragraph, or which
exceed any of the following percentage composi-
tion limitations, referred to the total volume of the
solvent:

(1) a combination of hydrocarbons, alco-
hols, aldehydes, esters, ethers, or
ketones having an olefinic or
cyclo-olefinic type of unsaturation
except perchloroethylene--five percent;

(2) a combination of aromatic hydrocarbons
with eight or more carbon atoms to the
molecule except ethylbenzene— eight
percent;

(3) a combination of ethylbenzene. ketones
having branched hydrocarbon structure,
trichloroethylene. or toluene--20 per-
cent.

Whenever any photochemically reactive solvent, or
any constituent of any photochemically reactive
may be classified from its chemical structure into
more than one of the groups in this Paragraph of
chemical compounds, it shall be considered as a
member of the most reactive chemical compound
group, that is. that group having the least allow-
able percent of the total volume of solvents.

Statutory- Autborit\'
143-215. 107(a)(5).

G.S. 143-215. 3(a)(1):

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NORTH CAROLINA REGISTER

November 2, 1992

1502

PROPOSED RULES

.0951 MISCELLANEOUS VOLATILE
ORGANIC COMPOLTsD
E^USSIONS

(a) This Rule applies to aU facilities that use
volatile organic compounds as solvents, carriers,
material processing media, or industrial chemical
reactants. or in other similar uses or that mix,
blend, or manufacture volatile organic compounds
for which there js no other applicable rule in this
■Section.

(b) This Rule does not apply to architectural or
maintenance coating.

(c) Facilities with potential emissions of volatile
organic compounds less than 100 tons per year
shall comply with 15A NCAC ^D .0518.

(d) With the exception of Paragraph (b) of this
Rule, the owner or operator of any facility with
the potential to emit 100 tons per Near or more of
\olatile organic compounds shall:

( 1 ) install and operate control equipment
which meets the requirements of best
a\'ailable control technology as defined
m and determined by procedures of
Rule 0.5.^0 ot~ this Section (A new best
a\ailable control technology determina-
tion and procedure need not be per-
formed if in the judgement of the Di-
rector a pre\'ious best available control
technology determination [s applica-
ble.):

(2) limit emissions of volatile organic
compounds from coating lines not
covered b\' R_ules .0917 through .0924.

.09.^4.

.09,^5 to no more than 6.7

13]

pounds per gallon of solids delivered to
the coating applicator: or
reduce the emissions of volatile organic
compounds from all sources at the plant
site that are not covered by Subpara-
graphs (d)( 1 ) or i2j of this Paragraph or
another rule in this Section by at least
85 percent by weight or dov\n to 40
pounds per day by destruction or by
capture of \'olatile organic compounds
in the emission stream . (Calculation of
capture efficiency shall be adjusted to
reflect eventual emission to the atmo-
sphere as volatile organic compounds
except for material reused, burned, or
reprocessed for reuse.)

Snnurory Amhorin G.S. 143-215. 3(a){l );
143-215. 107(a)i5j.

.0952 PETITION FOR .\LTERN.\TIVE

CONTROLS

(a) With the exceptions in Paragraph (b) of this
Rule, this Rule applies to all sources covered by
Paragraph (a) of Rule .0902 of this Section:

(b) This Rule does not apply to:

(1) sources in .Mecklenburg County to
which Rules .0917 through .0938 of
this Section apply and which are located
at a facility where the total potential
emissions of volatile organic com-
pounds from all stationary sources at
the facility is 100 tons per year or
more; or

(2) sources covered under Rule .0946 of
this Section.

(c) If the owner or operator of any source of
volatile organic compounds can demonstrate that
compliance with rules in this Section would be
technologicalh' or economically infeasible. he may
petition the Director to allow the use of alternative
operational or equipment controls for the reduction
of volatile organic compound emissions. Petition
shall be made for each source to tlie Director
before August h 1993. The petition can be made
only for sources i_n existence or under construction
on January 30. 1993.

(d) The petition shall contain:

( 1 ) the name and address of the company
and the name and telephone number of
a company officer over whose signature
the petition is submitted:

(2) a description of aU operations conduct-
ed at the location to which the petition
applies and the purpose that the volatile
organic compound emitting equipment
serves within the operations:

(3) reference to the specific operational and
equipment controls under the rules of
this Section for which alternative opera-
tional or equipment controls are pro-
posed:

(4) a detailed description of the proposed
alternative operational or equipment
controls, the magnitude of volatile
organic compound emission reduction
which will be achieved, and the quanti-
ty and composition of volatile organic
compounds v\hich will be emitted if the
alternative operational or equipment
controls are instituted:
a plan, which will be instituted in addi-
tion to the proposed alternative opera-
tional or equipment controls, to reduce,
where technologically and economically
feasible, volatile organic compound

15)

1503

7:15

NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

emissions from other source operations
at the facility, further than that required
under the rules of this Section, if these
sources exist at the facility, such that
aggregate volatile organic compound
emissions from the facility will in no
case be greater through application of
the alternative control than would be
allowed through conformance with the
rules of this Section;

(6) a schedule for the installation or institu-
tion of the alternative operational or
equipment controls in conformance with
Rule .0907 or .0909 of this Section, as
applicable; and

(7) certification that emissions of al] other
air contaminants from the subject
source are in compliance with all appli-
cable local, state and federal laws and
regulations.

The petition may include a copy of the permit
application and need not duplicate information m
the permit application.

(e) The Director shall approve a petition for
alternative control if:

(1 ) The petition js submitted in accordance
with Paragraph (d) of this Rule;

(2) The Director determines that the peti-
tioner cannot comply with the loiles m
question because of technological or
economical infeasibility;

(3) All other air contaminant emissions
from the facility are in compliance
with, or under a schedule for compli-
ance as expeditiously as practicable
with, all applicable local, state, and
federal regulations;

(4) The petition contains a schedule for
achie\'ing and maintaining reduction of
volatile organic compound emissions to
the maximum extent feasible and as
expeditiously as practicable; and

(5) A nuisance condition will not result
from operation of the source as pro-
posed in the petition.

(f) When controls different from those specified
in the appropriate emission standards in this
Section are approved by the Director, the permit
shall contain a condition stating such controls.

Statutorx Authority G.S. 143-215. 3(a)(l );
143-215.68: 143-215. 107(a)(5).

7:15 NORTH CAROLINA REGISTER November 2, 1992 1504

PROPOSED RULES

SECTION .1000 - MOTOR VEHICLE EMISSION CONTROL STANDARDS

.1004 EMISSION STANDARDS

(a) The following standards specify the maximum carbon monoxide (CO) and hydrocarbon (HC)
concentrations permitted to be exhausted from motor vehicles subject to these Regulations Rules:

Vehicle Class
Light-dutv Vehicle

Heavy-duty Vehicle

Model Year

1975-1977

1978-1979

1980

1981 and later

1975-1978
1979 and later

CO Standard

HC Standard

At Idl

'{%)

At Idle(PPM)

4.5

450

3.5

350

2.0

250

1.2

220

5.0

500

4.0

400

l'3\ /-*f tV»

Ir P.^milnt

nn Piil.^ ,^tVi.^r fho

(b) Exceptions or variances to the standards in Paragraph (a) of this Regulation. Rule, other than those
specified in Regulation Rule .1002 of this Section, are permitted only in accordance with the provisions of
the Emissions Test Procedures Section of the "Safety, Emissions, Windshield Procedures Manual" as set forth
by the North Carolina Division of Motor Vehicles. The documents adopted document incorporated by
reference in this Sect i on Rule shall automatically include any later amendments or editions thereto a s allowed
by G.S. I50B 1 4 (o) . This document can be inspected at or obtained from the Division of Motor Vehicles.
I 100 New Bern Avenue. Raleigh. North Carolina 27697 at no cost.

Srarurory- Authority G.S. 20-} 28. 2(a); 143-215. 3{a){l); 143-215. 107(a)(3); 143-215. 107(a)(6);
143-215. 107(a)(7); 1508-21. 6.

SL1BCHAPTER 2H - PROCEDURES FOR
PERMITS: APPROVALS

SECTION .0600 - AIR QUALIT\'
PERMITS

.0603 APPLICATIONS

(a) Permit application applications shall be made
in duplicate on official forms of the Director and
shall include plans and specifications giving all
necessary data and information as required by the
application form. These application focflis shall be
used: air contaminant sources--Form AQ-22, and
complex sources— Form AQ-81 . These forms may
be obtained by writing to the address in Paragraph
(b) of this Rule. Whenever the information pro-
vided on these forms does not adequately describe
the source and its air pollution abatement equip-
ment, the Director may request that the applicant
provide any other information that the Director
considers necessary to evaluate the source and its
air pollution abatement equipment.

(b) A permit or permit renewal application shall
be filed in writing with the Director. Division of
Environmental Management, Department of
Natural Resources and Community Development,

P.O. Box 27687. Raleigh, N.C. 27611. Applica-
tion for permit renewal or ownership transfer may
be by letter to the Director, if no alteration or
modification has been made to the originally
permitted source. A non-refundable permit appli-
cation processing fee shall accompany each appli-
cation. The permit application processing fee rates
fees are in Regulation Rule .0609 of this Section.
Each permit or renewal application is incomplete
until the permit application processing fee is
received.

(c) Before acting on any permit application, the
Director may request any information from an
applicant and conduct any inquiry or investigation
that he considers necessary and require the submis-
sion of plans and specifications.

(d) Before issuing any permit for:

(1) a source to which Rate 15A NCAC 2D
.0530 or .0531 applies,

(2) a source whose emission limitation is
based on a good engineering practice
stack height that exceeds the height
defined in 15A NCAC 2D
.0533(a)(4)(A), (B). or (C).

(3) a requirement for controls more strin-
gent than the applicable emission stan-
dards in Section 15A NCAC 2D .0500

1505

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PROPOSED RULES

in accordance with Rule 15A NCAC

2D .0501, or
(4) any other source that may be designated

by the Director,
the information submitted by the owner or opera-
tor, as well as the agency's analysis of the effect
on ambient air quality, shall be made available for
public inspection in at least one location in the
region affected. This shall be accomplished by
publishing in the region affected a notice by
prominent advertisement which shall provide a
30-day period for submittal of public comment and
an opportunity for a public hearing request.
Confidential material will be handled in accor-
dance with G.S. 143-215. 3(a)(2).

(e) A public hearing shall be held before the
issuance of any permit containing any one of these
conditions:

(1) any physical or operational limitation
on the capacity of the source to emit a
pollutant, including air pollution control
equipment and restrictions on hours of
operation or on the type or amount of
material combusted, stored, or pro-
cessed, when such limitations are neces-
sary to assure that regulations rules in
Section 15A NCAC 2D .0900 do not
apply in accordance with Regulations
15A NCAC 2D .0901 and .0902;

(2) an allowance of controls different than
the applicable emission standards in
Section 15A NCAC 2D .0900 in accor-
dance with Regulation 15A NCAC 2D
t990§ .0952 ;

(3) an alternate compliance schedule pro-
mulgated in accordance with Regulation
15A NCAC 2D .0910;

(4) the quantity of solvent-borne ink that
may be used by a printing unit or print-
ing systems in accordance with Regula
ttoft 15A NCAC 2D .0936; or

(5) an allowance of a particulate emission
rate of 0.08 grains per dry standard
cubic foot for incinerators constructed
before July 1, 1987, in accordance with
15A NCAC 2D .1205(b)(2).

The public hearing shall be preceded by a 30-day
period of public notice during which the agency's
analysis and draft permit shall be available for
public inspection in the appropriate regional office.
If and when a permit containing these conditions is
issued, it will become a part of the North Carolina
State Implementation Plan for Air Quality (SIP) as
an appendix available for inspection at Department
of Environment. Health, and Natural Resources

regional offices. The permit will be submitted to
the U.S. Environmental Protection Agency for
inclusion as part of the federally approved state
implementation plan.

(f) In a permit application for an alternative mix
of controls under 15A NCAC 2D .0501 (f~), the
owner or operator of the facility shall demonstrate
to the satisfaction of the Director that the proposal
is equivalent to the existing requirements of the
SIP in total allowed emissions, enforceability,
reliability, and environmental impact.

(1) With the exception stated in Subpara-
graph (2) of this Paragraph, a public
hearing shall be held before any permit
containing alternative emission limita-
tions is issued. The public hearing
shall be preceded by a 30-day period of
public notice during which the agency's
analysis and draft permit shall be avail-
able for public inspection and comment
in the appropriate regional office. If
and when a permit containing these
conditions is issued, it will become a
part of the SIP as an appendix available
for inspection at the department's re-
gional offices. Until the U.S. Environ-
mental Protection Agency (EPA) ap-
proves the SIP revision embodying the
permit containing an alternative mix of
controls, the facility shall continue to
meet the otherwise applicable existing
SIP requirements. The revision will be
approved by EPA on the basis of the
revision's consistency with EPA's
"Policy for Alternative Emission Re-
duction Options Within State Implemen-
tation Plans" as promulgated in the
Federal Register of December 1 1 ,
1979, pages 71780-71788, and subse-
quent rulings.

(2) The permit applicant(s) may choose to
provide a written acknowledgment that
the emission rate limitations or control
techniques allowed under an alternative
mix of controls involving only volatile
organic compounds are fully enforce-
able by EPA as a part of the SIP and
may be enforced pursuant to Section
304(a) of the federal Clean Air Act.
The acknowledgment shall also bind the
source owner's successors. If the
acknowledgment is provided to the
Director, the Director will promptly
transmit to EPA a copy of the permit
application. Before the Director issues

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1506

PROPOSED RULES

the permit, there shall be a 30-day
period of public notice during which the
agency's analysis and draft permit shall
be available for public inspection and
comment in the appropriate regional
office. If and when such permit is
issued, the Director will promptly
transmit a copy to EPA. The owner or
operator of a source located in a
nonattainment area for ozone as desig-
nated by the Environmental Protection
Agency may not initiate the use of this
option after November 30, 1989; he
shall follow the procedures set out in
Subparagraph (1) of this Paragraph.

Sratutor\ Authorin G.S.
143-215. 108: 143-215. 109.

143-215. 3(a)(1);

IS otice is hereby given in accordance with G.S.
150B-21.2 that EHNR - Division of Coastal Man-
agement intends to amend rule cited as 15A
NC.4C 7H .0208, .1205.

1 be proposed effective date of this action is April
1. 1993.

1 he public hearing will be conducted at 4:00
p.m. on November 19. 1992 at the Ramada Inn,
1701 South Virginia Dare Trail. Kill Devil Hills.
,V. C.

IXeason for Proposed Action: Tliese amendments
are intended to clarify existing rules and improve
consistency among the rules that govern exemp-
tions, general permits and major permits for pier
construction. Tlwse changes are considered
"non-substantive " in that they do not change
restrictions on where or how long piers can be
permitted.

i^cmunent Procedures: All persons interested in
this matter are invited to attend the public hearing.
The Coastal Resources Coimnission will receive
mailed written conunents postnuirked no later than
December 2, 1992. Any person desiring to present
lengthy comments is requested to submit a written
statement for inclusion in the record of proceed-
ings at the public hearing. Additional information
concerning the hearing or the proposals may be

obtained by contacting Dedra Blackwell, Division
of Coastal Management , P. O. Box 27687, Raleigh.
NC 27611-7687, (919) 733-2293.

tLditor's Note: Text shown in Bold Italics was
adopted by agency on July 24, 1992. These
changes are pending review by the Rules Review
Commission for an effective date of December 1,
1992. A public hearing was held September 24,
1992, for text shown in Italics and will be adopt-
ed by the CRC at the November meeting for an
effective date of February 1, 1993.

CHAPTER 7 - COASTAL MANAGEMENT

SUBCIL\PTER 7H - STATE GUIDELEVES

FOR AREAS OF ENVIRONMENTAL

CONCERN

SECTION .0200 - THE ESTUARINE
SYSTEM

.0208 USE STANT)ARDS

(aj General Use Standards

(1) Uses which are not water dependent
will not be permitted in coastal
wetlands, estuarine waters, and public
trust areas. Restaurants, residences,
apartments, motels, hotels, trailer
parks, private roads, factories, and
parking lots are examples of uses that
are not water dependent. Uses that are
v.ater dependent may include: utility
easements; docks; wharfs; boat ramps;
dredging; bridges and bridge approach-
es; revetments, bulkfieads; cuherts;
groins; navigational aids; mooring
pilings; navigational channels; simple
access channels and drainage ditches.

(2) Before being granted a permit by the
CRC or local permitting authority,
there shall be a finding that the appli-
cant has complied with the following
standards:

(A) The location, design, and need for
development, as well as the construc-
tion acti\'ities involved must be con-
sistent with the stated management
objective.
(B) Before receiving appro\'al for location
of a use or development \\ithin these
AECs, the permit-letting authority
shall find that no suitable alternative
site or location outside of the AEC

7.^-07

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PROPOSED RULES

exists for the use or development and,
further, that the applicant has selected
a combination of sites and design that
will have a minimum adverse impact
upon the productivity and biologic
integrity of coastal marshland, shell-
fish beds, suhnwr(;('il gni. s s beds, beds
of submersed aquatic vegetation .
spawning and nursery areas, impor-
tant nesting and wintering sites for
waterfowl and wildlife, and important
natural erosion barriers (cypress
fringes, marshes, clay soils).

(D) Development shall not cause major or
irreversible damage to valuable docu-
mented archaeological or historic
resources.

(E) Development shall not measurably
increase siltation.

(F) Development shall not create stagnant
water bodies.

(G) Development shall be timed to have
minimum adverse significant affect on
life cycles of estuarine resources.

(H) Development shall not impede naviga-
tion or create undue interference with
access to, or use of, public trust areas
or estuarine waters.
0) — Development proposed in estuarine
waters must also be consistent with
applicable standards for the ocean
hamrd system AECs set forth in
Section . 0300 of this Subchapter .
(3) When the proposed development is in
conflict with the general or specific use
standards set forth in this Rule, the
CRC may approve the development if
the applicant can demonstrate that the
activity associated with the proposed
project will have public benefits as
identified in the findings and goals of
the Coastal Area Management Act, that
the public benefits clearly outweigh the
long range adverse effects of the pro-
ject, that there is no reasonable and
prudent alternate site available for the
project, and that all reasonable means
and measures to mitigate adverse im-
pacts of the project have been incorpo-
rated into the project design and will be
implemented at the applicant's expense.
These measures taken to mitigate or
minimize adverse impacts may include

actions that will:

(A) minimize or avoid adverse impacts by
limiting the magnitude or degree of
the action;

(B) restore the affected environment; or

(4) Primary nursery areas are those areas
in the estuarine system where initial
post larval development of finfish and
crustaceans takes place. They are usual-
ly located in the uppermost sections of
a system where populations are uni-
formly early juvenile stages. They are
officially designated and described by
the N.C. Marine Fisheries Commission
in 15A NCAC 3B .1405 and by the
N.C. Wildlife Resources Commission
in 15A NCAC IOC .0110.

(5) Outstanding Resource Waters are those
estuarine waters and public trust areas
classified by the N.C. Environmental
Management Commission pursuant to
Title 15 A, Subchapter 23 .0216 of the
N.C. Administrative Code as Outstand-
ing Resource Waters (ORW) upon
finding that such waters are of excep-
tional state or national recreational or
ecological significance. In those es-
tuarine waters and public trust areas
classified as ORW by the Environmen-
tal Management Commission (EMC),
no permit required by the Coastal Area
Management Act will be approved for
any project which would be inconsistent
with applicable use standards adopted
by the CRC, EMC, or Marine Fisheries
Commission (MFC) for estuarine wa-
ters, public trust areas, or coastal
wetlands. For development activities
not covered by specific use standards,
no permit will be issued if the activity
would, based on site specific informa-
tion, materially degrade the water
quality or outstanding resource values
unless such degradation is temporary.

(6) Beds ol submerged aquatic vegetation
(SAV) are those habitats m public trust
and estuarine waters vegetated with one
or more species of submergent vegeta-
tion. Jliese vegetation beds occur m
both subtidal and intertidal zones and
may occur in isolated patches or cover
extensive areas. In either case, the bed

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150 fi

PROPOSED RULES

is defined by [he presence of
ahovc-i^round leaves or the
below-iiround rhizomes and propasules.
(b) Specific Use Standards
(1) Navigation channels, canals, and boat
basins must be aligned or located so as
to avoid primary nursery areas highly
producti\e shellfish beds, beds (>f sub
;»< ' rt,vc/ ve^iicuilion . beds of submersed
Luiucitic vegetation , or significant areas
of regularly or irregularly flooded
coastal wetlands.

(A) Navigation channels and canals can be
allowed may be allowed through
narrow fringes of regularly and ir-
regularly flooded coastal wetlands if
the loss of wetlands will have no
significant adverse impacts on fishery
resources, water quality or adjacent
wetlands, and. if there is no reason-
able alternati\e that would avoid the
wetland losses.

(B) All spoil material from new construc-
tion shall be confined landward of
regularly and irregularly flooded
coastal wetlands and stabilized to
prevent entry of sediments into the
adjacent water bodies or marsh.

(C) Spoil from maintenance of channels
and canals through irregularly flooded
wetlands shall be placed on
non- wetland areas, remnant spoil
piles, or disposed of by an acceptable
method having no significant, long
term wetland impacts. Under no
circumstances shall spoil be placed on
regularly flooded wetlands.

(D) Widths of the canals and channels
shall be the minimum required to
meet the applicant's needs and pro-
vide adequate water circulation.

(E) Boat basin design shall maximize
water e.xchange by having the widest
possible opening and the shortest
practical entrance canal. Depths of
boat basins shall decrease from the
waterward end inland.

(F) Any canal or boat basin shall be
excavated no deeper than the depth of
the connecting channels.

(G) Canals for the purpose of multiple
residential development shall have:

(i) no septic tanks unless they meet
the standards set by the Division
of Environmental Management

and the Division of Environmental
Health;
(ii) no untreated or treated point

source discharge;
(iii) storm water routing and retention
areas such as settling basins and
grassed swales.
(H) Construction of finger canal systems
will not be allowed. Canals shall be
either straight or meandering with no
right angle corners.
(I) Canals shall be designed so as not to
create an erosion hazard to adjoining
property. Design may include
bulkheading, vegetative stabilization,
or adequate setbacks based on soil
characteristics.
(J) Maintenance excavation in canals,
channels and boat basins within pri-
mary nursery areas and beds of sub-
merged aquatic vegetation should be
avoided. However, when essential to
maintain a traditional and established
use, maintenance excavation may be
approved if the applicant meets all of
the following criteria as shown by
clear and convincing evidence accom-
panying the permit application. This
Rule does not affect restrictions
placed on permits issued after March
1, 1991.
(i) The applicant ettn — demonstrate
and document denwnstrates and
documents that a water-dependent
need exists for the excavation;
and
(ii) There exists a previously permit-
ted channel which was constructed
or maintained under permits
issued by the State and /or or
Federal government. If a natural
channel was in use, or if a
human-made channel was con-
structed before permitting was
necessary, there must be clear
evidence that the channel was
continuously used for a specific
purpose; and
(iii) Excavated material can be re-
moved and placed in an approved
disposal area without significantly
impacting adjacent nursery areas
cmd beds of submersed aquatic
vegetation : and
(iv) The original depth and width of a

1509

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PROPOSED RULES

human-made or natural channel
will not be increased to allow a
new or expanded use of the chan-
nel.

(2) Hydraulic Dredging

(A) The terminal end of the dredge pipe-
line should shall be positioned at a
distance sufficient to preclude erosion
of the containment dike and a maxi-
mum distance from spillways to allow
adequate settlement of suspended
solids.

(B) Dredge spoil must be either confmed
on high ground by adequate retaining
structures or if the material is suit-
able, deposited on beaches for purpos-
es of renourishment. with the excep-
tion of (G) of this Subsection (b)(2).

(C) Confinement of excavated materials
shall be on high ground landward of
regularly and irregularly flooded
marshland and with adequate soil
stabilization measures to prevent entry
of sediments into the adjacent water
bodies or marsh.

(D) Effluent from diked areas receiving
disposal from hydraulic dredging
operations must be contained by pipe,
trough, or similar device to a point
waterward of emergent vegetation or,
where local conditions require, below
mean low water.

(E) When possible, effluent from diked
disposal areas shall be returned to the
area being dredged.

(F) A water control structure must be
installed at the intake end of the
effluent pipe.

(G) Publicly funded projects will be con-
sidered by review agencies on a
case-by-case basis with respect to
dredging methods and spoil disposal.

(H) Dredge spoil from closed shellfish
waters and effluent from diked dispos-
al areas used when dredging in closed
shellfish waters shall be returned to
the closed shellfish waters.

(3) Drainage Ditches

(A) Drainage ditches located through any
marshland shall not exceed six feet
wide by four feet deep (from ground
surface) unless the applicant van show
shows that larger ditches are neces-
sary for adequate drainage.

(B) Spoil derived from the construction or

maintenance of drainage ditches
through regularly flooded marsh must
be shall he placed landward of these
marsh areas in a manner that will
insure that entry of sediment into the
water or marsh will not occur. Spoil
derived from the construction or
maintenance of drainage ditches
through irregularly flooded marshes
shall be placed on nonwetlands wher-
ever feasible. Non-wetland areas
include relic disposal sites.

(C) Excavation of new ditches through
high ground shall take place landward
of a temporary earthen plug or other
methods to minimize siltation to
adjacent water bodies.

(D) Drainage ditches shall not have a
significant adverse effect on primary
nursery areas, productive shellfish
beds, suhmcr t n'tj i;rass beds, beds of
submersed aquatic vegetation . or
other documented important estuarine
habitat. Particular attention should
shall be placed on the effects of fresh-
water inflows, sediment, and nutrient
introduction. Settling basins, water
gates, retention structures are exam-
ples of design alternatives that may be
used to minimize sediment introduc-
tion.

(4) Nonagricultural Drainage

(A) Drainage ditches must be shall be
designed so that restrictions in the
volume or diversions of flow are
minimized to both surface and ground
water.

(B) Drainage ditches shall provide for the
passage of migratory organisms by
allowing free passage of water of
sufficient depth.

(D) Drainage ditches shall not divert or
restrict water flow to important
wetlands or marine habitats.

(5) Marinas. Marinas are defined as any
publicly or privately owned dock, basin
or wet boat storage facility constructed
to accommodate more than 10 boats
and providing any of the following
services: permanent or transient dock-
ing spaces, dry storage, fueling facili-
ties, haulout facilities and repair ser-

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November 2, 1992

1510

PROPOSED RULES

vice. Excluded from this definition are
boat ramp facilities allowing access
only, temporary docking and none of
the preceding services. Expansion of
existing facilities shall also comply with
these standards for all development
other than maintenance and repair
necessary to maintain previous service
levels.

(A) Marinas shall be sited in non-wetland
areas or in deep waters (areas not
requiring dredging) and shall not
disturb valuable shallow water, sub-
merged aquatic vegetation, and
wetland habitats, except for dredging
necessary' for access to high-ground
sites. The following four alternatives
for siting marinas are listed in order
of preference for the least damaging
alterative; marina projects shall be
designed to have the highest of these
four priorities that is deemed feasible
by the permit letting agency:

(i) an upland basin site requiring no
alteration of wetland or estuarine
habitat and providing adequate
flushing by tidal or wind generat-
ed water circulation;

(ii) an upland basin site requiring
dredging for access when the
necessary dredging and operation
of the marina will not result in the
significant degradation of existing
fishery, shellfish, or wetland
resources and the basin design
shall provide adequate flushing by
tidal or wind generated water
circulation;

(iii) an open water site located outside
a primary nursery area which
utilizes piers or docks rather than
channels or canals to reach deeper
water; and

(iv) an open water marina requiring
excavation of no intertidal habitat,
and no dredging greater than the
depth of the connecting channel.

(B) Marinas which require dredging shall
not be located in primary nursery
areas nor in areas which require
dredging through primary nursery
areas for access. Maintenance dredg-
ing in primary nursery areas for
existing marinas will be considered on
a case-bv-case basis.

(C) To minimize coverage of public trust
areas by docks and moored vessels,
dry storage marinas shall be used
where feasible.

(D) Marinas to be developed in waters
subject to public trust rights (other
than those created by dredging upland
basins or canals) for the purpose of
providing docking for residential
developments shall be allowed no
more than 27 sq. ft. of public trust
areas for every one lin. ft. of shore-
line adjacent to these public trust
areas for construction of docks and
mooring facilities. The 27 sq. ft.
allocation shall not apply to fairway
areas between parallel piers or any
portion of the pier used only for
access from land to the docking spac-
es.

(E) To protect water quality of
shellfishing areas, marinas shall not
be located within areas where shell-
fish harvesting for human consump-
tion is a significant existing use or
adjacent to such areas if shellfish
harvest closure is anticipated to result
from the location of the marina. In
compliance with Section 101(a)(2) of
the Clean Water Act and North Caro-
lina Water Quality Standards adopted
pursuant to that section, shellfish
harvesting is a significant existing use
if it can be established that shellfish
have been regularly harvested for
human consumption since November
28, 1975 or that shellfish apparently
are propagating and surviving in a
biologically suitable habitat and are
available and suitable for harvesting
for the purpose of human consump-
tion. The Division of Marine Fisher-
ies shall be consulted regarding the
significance of shellfish harvest as an
existing use and the magnitude of the
quantities of shellfish which have
been harvested or are available for
harvest in the area where harvest will
be affected by the development.

(F) Marinas shall not be located without
written consent from the controlling
parties in areas of submerged lands
which have been leased from the state
or deeded by the state.

(G) Marina basins shall be designed to

1511

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November 2, 1992

PROPOSED RULES

promote flushing through the follow-
ing design criteria:
(i) the basin and channel depths shall
gradually increase toward open
water and shall never be deeper
than the waters to which they
connect; and
(ii) when possible, an opening shall
be provided at opposite ends of
the basin to establish flow-through
circulation.

(H) Marinas shall be designed to minimize
adverse effects on navigation and
public use of public trust areas while
allowing the applicant adequate access
to deep waters.

(I) Marinas shall be located and con-
structed so as to avoid adverse im-
pacts on navigation throughout all
federally maintained channels and
their immediate boundaries. This
includes mooring sites (permanent or
temporary), speed or traffic reduc-
tions, or any other device, either
physical or regulatory, that may cause
a federally maintained channel to be
restricted.

(J) Open water marinas shall not be
enclosed within breakwaters that
preclude circulation sufficient to
maintain water quality.

(K) Marinas which require dredging shall
provide acceptable areas to accommo-
date disposal needs for future mainte-
nance dredging. Proof of the ability to
truck the spoil material from the
marina site to an acceptable disposal
area will be acceptable.

(L) Marina design shall comply with all
applicable requirements for manage-
ment of stormwater runoff.

(M) Marinas shall post a notice prohibiting
the discharge of any waste from boat
toilets and explaining the availability
of information on local pump-out
services.

(N) Boat maintenance areas must be de-
signed so that all scraping, sandblast-
ing, and painting will be done over
dry land with adequate containment
devices to prevent entity of waste
materials into adjacent waters.

(O) All marinas shall comply with all
applicable standards for docks and
piers, bulkheading, dredging and spoil

disposal.

(P) All applications for marinas shall be
reviewed to determine their potential
impact and compliance with applica-
ble standards. Such review shall
consider the cumulative impacts of
marina development.

(Q) Replacement of existing marinas to
maintain previous service levels shall
be allowed provided that the preced-
ing rules are complied with to the
maximum extent possible, with due
consideration being given to replace-
ment costs, service needs, etc.
(6) Docks and Piers

(A) Docks and piers shall not significantly
interfere with water flows.

(B) To preclude the adverse effects of
shading coastal wetlands vegetation,
docks and piers built over coastal
wetlands shall not exceed six feet in
width. "T"s and platforms associated
with residential piers must be at the
waterward end. and must not exceed
a total area of 500 sq. ft. with no
more than six feet of the dimension
perpendicular to the marsh edge
extending over coastal wetlands.
Water dependent projects requiring
piers or wharfs of dimensions greater
than those stated in this Rule shall be
considered on a case-by-case basis.

(C) Piers shall be designed to minimize
adverse effects on navigation and
public use of waters while allowing
the applicant adequate access to deep
waters by:

(i) not extending beyond the estab-
lished pier length along the same
shoreline for similar use; (This
restriction shall not apply to piers
200 feet or less in length unless
necessary to avoid unreasonable
interference with navigation or
other uses of the waters by the
public);

(ii) not extending into the channel
portion of the water body; and

(iii) not extending more than one-third
the width of a natural water body
or man-made canal or basin.
Measurements to determine
widths of the channels, canals or
basins shall be made from the
waterward edge of any coastal

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November 2. 1992

1512

PROPOSED RULES

(D)

(E)

(Fj

wetland vegetation which borders
the water body. The one-third
length limitation will not apply in
areas where the U.S. .Army Corps
of Engineers, or a local govern-
ment in consultation with the
Corps of Engineers, has estab-
lished an official pier-head line.
Pier alignments along federally main-
tained channels must meet Corps of
Engineers District guidelines.
Piers shall not interfere with the
access to any riparian property and
shall have a minimum setback of 15
feet between any part of the pier and
the adjacent property owner's areas of
riparian access. The line of division
of areas of riparian access shall be
established by drawing a line along
the channel or deep water in front of
the properties, then drawing a line
perpendicular to the line of the chan-
nel so that it intersects with the shore
at the point the upland property line
meets the water's edge. TTie minimum
setback provided in the rule may be
wai\ed by the written agreement of
the adjacent riparian owner* s) or
when two adjoining riparian owners
are co-applicants. Should the adjacent
property be sold before construction
of the pier commences, the applicant
shall obtain a written agreement with
the new owner wai\ing the minimum
setback and submit it to the permitting
agency prior to initiating any develop-
ment of the pier. Application of this
rule may be aided by reference to an
approved diagram illustrating the rule
as applied to \arious shoreline config-
urations. Copies of the diagram may
be obtained from the Di\ision of
Coastal Management. When shoreline
configuration [s such that a perpendic-
ular alignment cannot be achieved.

the pier shall be aligned to meet the
intent of this rule to the maximum
e.xtent practicable.

Docks and piers shall not significantly
interfere with shellfish franchises or
leases. Applicants for authorization to
construct a dock or pier shall pro\ide
notice of the permit application or
exemption request to the owner of any
part of a shellfish franchise or lease

over which the proposed dock or pier
would extend.
(7j Bulkheads and Shore Stabilization Mea-
sures
fAi Bulkhead alignment, for the purpose
of shoreline stabilization, mufrt .'-hall
approximate mean high water or
normal water level.
(Bj Bulkheads shall be constructed land-
ward of significant marshland or
marshgrass fringes.
(C) Bulkhead fill material shall be ob-
tained from an approved upland
source, or if the bulkhead is a part of
a permitted project invoh'ing excasa-
tion from a non-upland source, the
material so obtained may be contained
behind the bulkhead.
(Dj Bulkheads or other structures em-
ployed for shoreline stabilization shall
be permitted below approximate mean
high water or normal water le\el only
when the following standards are met;
(i) the property to be bulkheaded has
an identifiable erosion problem,
whether it results from natural
causes or adjacent bulkheads, or it
has unusual geographic or geolog-
ic features, e.g. steep grade bank,
which will cause the applicant
unreasonable hardship under the
other pro\isions of this Rcgula
tion; Rule;
(ii) the bulkhead alignment extends no
further below appro.ximate mean
high water or normal water level
than necessary to allow recover}'
of the area eroded in the year
prior to the date of application, to
align with adjacent bulkheads, or
to mitigate the unreasonable hard-
ship resulting from the unusual
geographic or geologic feamres;
fiii) the bulkhead alignment will not
result in significant adverse im-
pacts to public trust rights or to
the property of adjacent riparian
owners:
(iv) the need for a bulkhead below
approximate mean high water or
normal water level is documented
in the Field ln\"estigation Report
or other reports prepared by the
Division of Coastal Management;
and

1513

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SORTH CAROLIXA REGISTER

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PROPOSED RULES

(v) the property to be bulkheaded is
in a nonoceantront area.
(E) Where possible, sloping rip-rap,
gabions, or vegetation may shall be
used rather than vertical seawalls.
(8) Beach Nourishment

(A) Beach creation tind/or or maintenance
may be allowed to enhance water
related recreational facilities for pub-
lic, commercial, and private use.

(B) Beaches etm nui\ be created ami/or or
maintained in areas where they have
historically been found due to natural
processes. They will not be allowed
in areas of high erosion rates where
frequent maintenance will be neces-
sary.

(C) Placing unconfined sand material in
the water and along the shoreline will
not be allowed as a method of shore-
line erosion control.

(D) Material placed in the water and along
the shoreline shall be clean sand free
from pollutants and highly erodible
fmger material. Grain size shall be
equal to or larger than that found na-
turally at the site.

(E) Material from dredging projects can
be used for beach nourishment if:

(i) it is first handled in a manner
consistent with regulations rules
governing spoil disposal;

(ii) it is allowed to dry for a suitable
period; and

(iii) only that material of acceptable
grain size is removed from the
disposal site for placement on the
beach. Material shall not be
placed directly on the beach by
dredge or dragline during mainte-
nance excavation.

(F) Beach creation shall not be allowed in
any primary nursery areas, nor in any
areas where siltation from the site
would pose a threat to shellfish beds.

(G) Material shall not be placed on any
coastal wetlands or hcds of submerged
aquatic vegetation.

(H) Material shall not be placed on any
submerged bottom with significant
shellfish resources.

(I) Beach construction shall not create the
potential for filling adjacent or nearby
navigation channels, canals, or boat
basins.

(J)
(K)

(L)

(9)

(A)

(B)

Beach construction shall not violate
water quality standards.
Permit renewal of these projects shall
require an evaluation of any adverse
impacts of the original work.
Permits issued for this development
shall be limited to authorizing beach
nourishment only one time during the
life of the permit. Permits may be
renewed for maintenance work or re-
peated need for nourishment.
Wooden and Riprap Groins
Groins shall not extend more than 25
ft. waterward of the mean high water
or normal water level unless a longer
structure can he is justified by site
specific conditions, sound engineering
and design principals.
Groins shall be set back a minimum
of 15 ft. from the adjoining property
lines. This setback may be waived by
written agreement of the adjacent
riparian owner(s) or when two adjoin-
ing riparian owners are co-applicants.
Should the adjacent property be sold
before construction of the groin com-
mences, the applicant shall obtain a
written agreement with the new owner
waiving the minimum setback and
submit it to the permitting agency
prior to initiating any development of
the groin.

Groins shall pose no threat to naviga-
tion.

The height of groins shall not exceed
1 ft. above mean high water or the
normal water level.
No more than two structures shall be
allowed per 100 ft. of shoreline unless
the applicant can provide provides
evidence that more structures are
needed for shoreline stabilization.
"L" and "T" sections shall not be
allowed at the end of groins.
Riprap material used for groin con-
struction shall be free from loose dirt
or any other pollutant in other than
non-harmful quantities and of a size
sufficient to prevent its movement
from the site by wave and current
action.

Statiiton,- Aurliority G.S. USA- 107(h): 1J3A-108:
lUA-J 13(h); 113A-124.

(E)

(F)
(G)

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November 2, 1992

1514

PROPOSED RULES

SECTION .1200 - GENERAL PERIVHT FOR

CONSTRUCTION OF PIERS: DOCKS: AND

BOAT HOUSES EV ESTUAREVE AND

PUBLIC TRUST WATERS

.1205 SPECIFIC CONDITIONS

(a) Piers, docks, and boat houses may extend or
be located up to a maximum of 400 feet from the
mean high water contour line, or the normal water
level, whichever is applicable.

(b) Piers, docks, and boat houses shall not
extend beyond the established pier length along the
same shoreline for similar use. This restriction
shall not apply to piers 200 feet or less in length
unless necessary to avoid unreasonable interference
with navigation or other uses of the waters by the
public.

(d) Boat houses shall have open sides and have
a floor area not to exceed 500 square feet.

fe^

Piers. dool<

and boat houses shall be

ICrS. — Q0CK5.

conatruetod no clo s er than 8.*^ foel to the near
bottom edge of any federally maintained navigation
channel.

(e) Pier alignments along federally maintained
channels must meet Corps of Engineers guidelines.

(f) Piers, docks, and boat houses shall in no
case extend more than 1/3 the width of a natural
water body or man-made canal or basin.

(g) Piers, docks and boat houses shall not
interfere with the access to any riparian property,
and shall have a minimum setback of 15 feet
between any part of the pier and the adjacent
property lines extended into the water at the points
that they intersect the shoreline. The minimum
setbacks provided in the rule may be waived by
the written agreement of the adjacent riparian
owner(s), or when two adjoining riparian owners
are co-applicants. Should the adjacent property be
sold before construction of the pier commences,
the applicant shall obtain a written agreement with
the new owner waiving the minimum setback and
submit it to the Division of Coastal Management
prior to initiating any development of the pier,
dock, or boat house. The line of division of areas
of riparian access shall be established by drawing
a line along the channel or deep water in front of
the property, then drawing a line perpendicular to
the line of the channel so that it intersects with the
shore at the point the upland property line meets
the water's edge.

(h) Piers and docks may have "T" heads or
platforms not exceeding 500 square feet built at

their waterward end and not covering any vegetat-
ed wetland areas.

(i) For all new or replacement floating facilities,
flotation units shall be constructed of material
which will not become waterlogged or sink when
punctured.

(j) This general permit is not applicable on
ocean beaches.

(k) Piers, and mooring facilities shall be de-
signed to provide docking space for no more than
4 boats.

(]} Docks and piers shall not significantly inter-
fere with shellfish franchises or leases. Applicants
for authorization to construct a dock or pier shall
provide notice of the permit application to the
owner of any part of a shellfish franchise or lease

over which the proposed dock or pier would
extend.

Statutory Authority G.S. 1 1 3A-107(a);
1 1 3A-W7(h): 1 1 3A-] 1 3(h): 11 3A-1 1 8. } : 1 1 3A-1 24.

^ ifi ^ ^ ^ ^

>fi if ii: ifi :ifi if

l\ otice is hereby given in accordance with G.S.
1508-21. 2 that EHNR - Division of Coastal Man-
agement intends to amend rule cited as 15A
NCAC 7H .0308.

1 he proposed effective date of this action is
February 1, 1993.

1 he public hearing will be conducted at 4:00
p.m. on November 19, 1992 at the Ramada Inn,
1701 South Virginia Dare Trail. Kill Devil Hills.
N.C.

Ixeason for Proposed Action: TJiese amendments
are intended to address special needs for shoreline
stabilization along the harrier islands that could
allow the use of erosion-control structures to
protect historic sites of national significance and
commercial navigation channels.

(comment Procedures: All persons interested in
this matter are invited to attend the public hearing.
Tlie Coastal Resources Cotnmission will receive
mailed written comments postmarked no later than
December 2. 1992. Any person desiring to present
lengthy comments is requested to submit a written
statement for inclusion in the record of proceed-
ings at the public hearing. Additional information

1515

7:15

NORTH CAROLINA REGISTER

November 2. 1992

PROPOSED RULES

concerning the hearing or the proposals may be
obtained by contacting Dedra Blackwell, Division
of Coastal Management . P.O. Bo.x 27687, Raleigh,
NC 27611-7687, (919) 733-2293.

Jbiditor's Note: Text shown in Italics was adopt-
ed by the CRC on September 25, 1992. nese
changes are pending review by the Rules Review
Commission for an effective date of December 1,
1992.

CHAPTER 7 - COASTAL MANAGEMENT

SUBCHAPTER 7H - STATE GUIDELINES

FOR AREAS OF EIWIRONME^^^AL

CONCERN

SECTION .0300 - OCEAN HAZARD AREAS

.0308 SPECIFIC USE STANDARDS
FOR OCEAN HAZARD AREAS

(a) Ocean Shoreline Erosion Control Activities:
(1) Use Standards Applicable to all Erosion

Control Activities:

(A) Preferred erosion control measures
shall be beach nourishment projects
and relocation. Alterative approaches
will be allowed where the applicant
can show that such measures are nec-
essary to provide adequate protection.
Comprehensive shoreline management
shall be preferred over small scale
methods.

(B) Erosion control structures which
cause significant adverse impacts on
the value and enjoyment of adjacent
properties or public access to and use
of the ocean beach are prohibited.
Such structures include, but are not
limited to, wooden bulkheads,
seawalls, rock or rubble revetments,
wooden, metal, concrete or rock
jetties, groins and breakwaters;
concrete-filled sandbags and tire
structures.

(C) Rules concerning the use of
oceanfront erosion control measures
apply to all oceanfront properties
without regard to the size of the
structure on the property or the date
of its construction.

(D) Erosion control measures which will
interfere with public access to and use
of the ocean beaches are prohibited.

{E) — Erosion control measures which sig
nificantly increase erosion on aJjaccnt
properties are prohibited.

fF) £E] All oceanfront erosion control
activities, other than beach bulldoz-
ing, placement of sandbag structures
or artificial seaweed shall demonstrate
sound engineering for their planned
purpose and shall be certified by a
licensed engineer prior to being per-
mitted.

{G) [Fj Shoreline erosion control projects
shall not be constructed in beach or
estuarine areas that sustain substantial
habitat for important wildlife species
unless adequate mitigation measures
are incorporated into project design,
as set forth in Rule .0306(1) of this
Section.

i^ij [Gj Project construction shall be
timed to have minimum significant
adverse effect on biological activity.

{fj (Hj The applicant shall notify all
littoral property owners within 100" of
the boundaries of the project site and
no permit shall be issued until the
property owner(s) has signed the
notice form or until a reasonable
effort has been made to serve notice
on the owner(s) by registered or cer-
tified mail.

■^ [Ij All oceanfront erosion control
projects shall be consistent with the
general policy statements in 15A
NCAC 7M .0200.

i-K) QJ Prior to beginning any beach
nourishment or structural erosion
control project, all exposed remnants
of or debris from failed erosion con-
trol structures must be removed by
the permittee.

fhj [Kj All permitted erosion control
devices shall be marked so as to allow
identification for monitoring and
potential cleanup purposes.

(M) (LI Erosion control structures that
would otherwise be prohibited by
these standards may be permitted on
finding that:
(i) the erosion control structure is
necessary to protect a bridge
which provides the only existing
road access to a substantial popu-
lation on a barrier island; that is
vital to public safety; and is immi-

7.-75

NORTH CAROLINA REGISTER

November 2, 1992

1516

PROPOSED RULES

(M)

nently threatened by erosion;
(ii) the preferred erosion control
measures of relocation, beach
nourishment or temporar\' sta-
bilization are not adequate to
protect public health and safety;
and
(iii) the proposed erosion control
measure will have no adverse
impacts on adjacent properties in
private ownership and will have
minimal impacts on public use of
the beach.
Erosion control structures that would
otherwise be prohibited by these
standards may also be permitted on
fmding that:
(I) the erosion control stiTJCture is
necessary to protect an historic
site of national significance,
which is imminently threatened by
s horeline erosion; and

control

iiii

the preferred erosion
methods of relocation-

beach

nourishment or temporary stabili-
zation are not adequate and practi-
cable to protect the site; and

(iii) the erosion control stnicture is
limited in extent and scope to that
necessary to protect the site; and

(i\') a responsible public agency enters
into binding agreements to pro-
vide adequate mitigation for all
adverse impacts caused by the
permitted structure.
(N) Erosion control structures that would
otherwise be prohibited by these
standards may also be permitted on
finding that:

(i) the erosion control structure is
necessar\' to maintain an existing
commercial navigation channel;
and

(ii) dredging alone is not adequate to
maintain safe access to the effect-
ed channel; and

(iii) the erosion control structure is
limited in extent and scope to that
necessary to maintain the channel,
and

(iv) the erosion control structure will
not result in substantial ad\erse
impacts to fisheries or other pub-
lic trust resources; and

(V) a restionsible public agency enters

into binding agreements to pro-
vide adequate mitigation for all
adverse impacts caused by the
permitted structure.
(2) Temporary Erosion Control Structures
(Aj Permittable temporal'}' erosion control
structures include only the following:

(i) Bulkheads or similar structures
made of sandbags or comparable
materials;

(ii) Low sandbag groins or sandbag
sediment trapping structures above
mean high water provided they
are continuously buried by suit-
able sand from an outside source.

(B) Temporary erosion control structures
as defined in (A) of this Paragraph
may be used only to protect immi-
nently threatened structures. Normal-
ly, a structure will be considered to
be imminently threatened if its foun-
dation is less than 20 feet away from
the erosion scarp.

(C) Shore-parallel temporary' erosion
control structures must not extend
more than 20 feet past the end of the
structure to be protected. The erosion
control structure also must not come
closer than 15 feet to the applicant's
side property lines unless the applica-
tion is part of a joint project with
neighbors trying to protect similarly
threatened structures or unless the
applicant has written permission from
the affected property owner. The
landward side of such temporary
erosion control structures shall not be
located more than 20 feet seaward of
the property to be protected.

(D) If a temporary' erosion control struc-
ture interferes with public access and
use of the ocean beach, or if it re-
quires burial but remains continuously
exposed for more than six months it
must be removed by the permittee
within 30 days of notification by the
Coastal Resources Commission or its
representatives. In addition, the per-
mittee shall be responsible for the
removal of remnants of all or portions
of the temporary erosion control
structure damaged by storms or con-
tinued erosion.

(E) Once the temporary' erosion control
structure is determined to be unneces-

1517

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NORTH CAROLINA REGISTER

November 2. 1992

PROPOSED RULES

sary due to a natural reversal of the
eroding condition, relocation of the
threatened structure, or adoption of an
alternate erosion control method, any
remnants of the temporary erosion
control structure exposed seaward of
or on the beach must be removed by
the permittee within 30 days of notifi-
cation by the Coastal Resources Com-
mission or its representatives.
(F) Temporary sandbag bullcheads
permittable by this Rule shall be of a
size and configuration consistent with
their allowed purpose. Such structures
may be appropriately anchored and
shall not exceed a width at their base
of three sandbags or a maximum of
fifteen feet. In no case shall the struc-
ture extend below the mean high
water line.

(3) Sand-Trapping Devices: Low intensity
off-shore passive sand-trapping devices
may be permitted provided:

(A) A minimum of two signs no smaller
than 12 inches x 18 inches will be
placed and maintained on poles on the
ocean beach at least 6' above ground
level that will indicate to fishermen,
surfers and bathers that the structures
or devices are present offshore.

(B) The structures or devices will be
removed at the expense of the appli-
cant should they be documented as a
nuisance to private property or to the
public well being. "Nuisance" will be
defined as any interference with rea-
sonable use of public trust areas or
other lands within the ocean hazard
system AECs that are subject to pub-
lic trust use.

(C) The structures or devices will be
aligned no closer than 450 feet sea-
ward of the first line of stable natural
vegetation or 300 feet from the mean
high water line, whichever is further
seaward.

(4) Beach Nourishment. Sand used for
beach nourishment should be compati-
ble with existing grain size and type.
Sand to be used for beach nourishment
shall be taken only from those areas
where the resulting environmental
impacts will be minimal.

(5j Beach Bulldozing. Beach bulldozing
(defined as the process of moving natu-

ral beach material from any point sea-
ward of the first line of stable vegeta-
tion to create a protective sand dike or
to obtain material for any other pur-
pose) is development and may be per-
mitted as an erosion control measure if
the following conditions are met:

(A) The area on which this activity is
being performed must maintain a
slope of adequate grade so as to not
endanger the public or the public's
use of the beach and should follow
the preemergency slope as closely as
possible. The movement of material
utilizing a bulldozer, front end loader,
backhoe, scraper, or any type of earth
moving or construction equipment
should not exceed one foot in depth
measured from the pre-activity surface
elevation;

(B) The activity must not exceed the
lateral bounds of the applicant's prop-
erty unless he has permission of the
adjoining land owner(s);

(C) Movement of material from seaward
of the low water line will require a
CAMA Major Development and State
Dredge and Fill Permit;

(D) The activity must not significantly
increase erosion on neighboring prop-
erties and must not have a significant
adverse effect on important natural or
cultural resources;

(E) The activity may be undertaken to
protect threatened on-site waste dis-
posal systems as well as the threat-
ened structure's foundations.

(b) Dune Establishment and Stabilization.
Activities to establish dunes shall be allowed so
long as the following conditions are met:

(1) Any new dunes established shall be
aligned to the greatest extent possible
with existing adjacent dune ridges and
shall be of the same general configura-
tion as adjacent natural dunes.

(2) Existing primary and frontal dunes shall
not, except for beach nourishment and
emergency situations, be broadened or
extended in an oceanward direction.

(3) Adding to dunes shall be accomplished
in such a manner that the damage to
existing vegetation is minimized. The
filled areas will be immediately replant-
ed or temporarily stabilized until plant-
ing can be successfully completed.

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NORTH CAROLINA REGISTER

November 2, 1992

1518

PROPOSED RULES

(4) Sand used to establish or strengthen
dunes must be hroui;hl in from ii source
outsidi ' flic iKcan hazard arcii and must
he of the samt ' nature as the sand in the
area in which if is to he placed, of the
same a en era I characteristics as the
sand in the area in which it is to he
placed.

(5) No new dunes shall be created in inlet
hazard areas.

(6) n>at sand held in sforaiie in any dune
other than frontal or priman dunes
may be moved laterally in order to
strengthen e.xistint; primary or frontal
dunes if the work M'ould enhance the
protection !o the proposed development
activity. Sand held in storaiie in an\
dune, other than the frontal or priman
dune, max he redistributed within the
AEC provided that ij_ is not placed any
farther ocean ward than the crest of a
prinuir\- dune or landward toe of a
frontal dune.

(7) No disturbance of a dune area will be
allowed when other techniques of con-
stiojction can be utilized and alterative
site locations exist to a\'oid unnecessary'
dune impacts.

( 1 ) Structural accessways shall be permitted
across priman,' dunes so long as they
are designed and constructed in a man-
ner which entails negligible alteration
on the primary dune. Structural ac-
cessways may not be considered threat-
ened structures for the purpose of Para-
graph (a) of this Rule.

(2) An accessway shall be conclusively
presumed to entail negligible alteration
of a primary dune

(A) The accessway is exclusively for
pedestrian use;

(B) The accessway is less than six feet in
width; and

(C) The accessway is raised on posts or
pilings of five feet or less depth, so
that wherever possible only the posts
or pilings touch the frontal dune.
Where this is deemed impossible, the
structure shall touch the dune only to
the extent absolutely necessary. In no
case shall an accessway be permitted
if it will diminish the dune's capacity
as a protective barrier against flood-
ing and erosion; and

(D) Any areas of vegetation that are dis-
turbed are revegetated as soon as
feasible.

(3) An accessway which does not meet
(2)(A) and (B) of this Paragraph shall
be permitted only if it meets a public
purpose or need which cannot otherwise
be met and it meets (2)(C) of this Para-
graph. Public fishing piers shall not be
deemed to be prohibited by this Rule,
provided all other applicable standards
are met.

(4) In order to avoid weakening the protec-
tive nature of primary and frontal dunes
a structural accessway (such as a
"Hatteras ramp") should be provided
for any off-road vehicle (ORV) or
emergency vehicle access. Such
accessways should be no greater than
ten feet in width and should be con-
structed of wooden sections fastened
together over the length of the affected
dune area.

(d) Construction Standards. New construction
and substantial improvements (increases of 50
percent or more in value on square footage) to
existing construction shall compK' with the follow-
ing standards:

(1) In order to avoid unreasonable danger
to life and property, all development
shall be designed and placed so as to
minimize damage due to fluctuations in
ground elevation and wave action in a
100 year stonn. Any building construct-
ed within the ocean hazard area shall
comply with the North Carolina Build-
ing Code including the Coastal and
Flood Plain Construction Standards.
Chapter 34. Volume I or Section 39,
Volume 1-B and the local flood damage
prevention ordinance as required by the
National Flood Insurance Program. If
any provision of the building code or a
flood damage prevention ordinance is
inconsistent with any of the following
AEC standards, the more restrictive
provision shall control.

(2) All structures in the ocean hazard area
shall be on pilings not less than eight
inches in diameter if round or eight
inches to a side if square.

(3) All pilings shall have a tip penetration
greater than eight feet below the lowest
ground elevation under the structure.
For those structures so located on the

1519

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NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

primary dune or nearer to the ocean,
the pilings must extend to five feet
below mean sea level.
(4) All foundations shall be adequately
designed to be stable during applicable
fluctuations in ground elevation and
wave forces during a 100 year storm.
Cantilevered decks and walkways shall
meet this standard or shall be designed
to break-away without structural dam-
age to the main structure.

Statutory Authority G.S. 1 13A-107(a);
]]3A-] 07(b); 1 13A-113(b)(6)a. .h.,d.; U3A-124.

nlotice is hereby given in accordance with G.S.
I50B-21.2 that the Environment, Heath, and
Natural Resources - Radiation Protection Commis-
sion intends to adopt rules cited as 15A NCA C 1 1
.1501 - .1517.

1 he proposed effective date of this action is May
1, 1993.

1 he public hearings will be conducted at 1:00
p.m. and 7:00 p.m. on November 17, 1992 at the
Division of Radiation Protection, 3825 Barrett
Drive. Room 101, Raleigh, NC 27609.

Jxeason for Proposed Actions: These Rules are
necessary to meet the requirements in G.S.
104E-10. 3 and 104E-27. These Rules provide for
the licensing of radioactive waste generators '
access to any low-level radioactive waste disposal
facility located in the state. These Rules also
require generators of low-level radioactive waste
to implement best management practices and
reduce waste volume to the extent technologically
and economically feasible.

(comment Procedures: Written comments should
he submitted to the Division of Radiation Protec-
tion. P.O. Bo.x 27687, Raleigh, NC 27611-7687.
Written comments will be accepted until December
17, 1992. Any perscm requiring information
concerning the proposed rules should contact
Richard M. Fry, Deputy Director. at
919/571-4141 . Persons wishing to speak at the
hearini; are encouraged to notify Mr. Fry at least
three days prior to the hearing.

CHAPTER 11 - RADIATION PROTECTION

SECTION .1500 - LICENSES FOR
DISPOSAL SITE ACCESS

.1501 PURPOSE AND SCOPE

(a) This Section establishes the procedures,
criteria, and terms and conditions upon which the
agency issues licenses authorizing access to a
low-level radioactive waste disposal facility for
the purpose of low-level radioactive waste dispos-
aL

(b) No person shall transfer waste to a disposal
facility located in North Carolina unless such
person holds a valid site access license issued by
the agency pursuant to the rules in this Section.

(1) has implemented best management
practices. including prevention,
minimization, reduction, segregation
and hold-for-decay storage as required
by the rules in this Section; and

(2) is reducing waste volume to the extent
technologically and economically feasi-
ble.

(d) Site access licenses issued pursuant to the
rules in this Section shall authorize access only to
disposal facilities operated pursuant to the provi-
sions of G.S. 104G and licensed pursuant to the
rules in Section . 1200 of this Chapter. Upon
issuance of a site access license pursuant to the
rules in this Section, the agency shall certify to the
North Carolina Low-Level Radioactive Waste
Management Authority that a generator is reducing
waste volume to the extent technologically and
economically feasible.

(e) Nothing in this Section or in site access
licenses issued pursuant to this Section shall
relieve any person from responsibility for comply-
ing with any applicable requirements in the other
sections of this Chapter or in state and federal laws
and regulations, including, but not limited to,
those of the U.S. Department of Transportation,
the U.S. Nuclear Regulatory Commission, and the
North Carolina Department of Transportation.

(f) The rules m this Section are applicable to
generators, collectors and processors of low-level
radioactive waste which will be transferred to a
low-level radioactive waste disposal facility
located within the State of North Carolina for
disposal.

(g) The rules in this Section are applicable to
those waste forms deemed acceptable according to

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1520

PROPOSED RULES

the North Carolina low-level radioactive disposal
facilit\' license as issued by the agency. The rules
in this Section shall not be construed to authorize
the disposal of any waste that js not authorized for
disposal under Section . 1200 of this Chapter.

Stiiiutory Amiuiriry G.S. 104E-10.3: 104E-27.

.1502 DEFINITIONS

(a) As used in this Section, the following defini-
tions shall apply.

(1)

{21

ill

14]

i5l

(6]

ill

"Carrier" means any person transport-
ing radioactive u'aste in North Carolina
for the purpose of disposal at a
low-le\'el radioactive waste disposal
facility located in North Carolina.
"Collector" means any person who
collects or consolidates prepared pack-
ages of low-lesel radioactive waste
from another site access licensee and
arranges for the transportation of such
waste to a disposal facility located in
North Carolina.

"Generator" means any person who
produces low-le\el radioactive waste
which will be transferred for disposal at
a lovv'-le\el radioactive waste disposal
facility located in North Carolina,
including indirect transfer through
collectors or processors.
"Low-le\'el radioactive waste" means

low-level radioactive waste as defined
in Rule .1202 of this Chapter.
"Low-Level radioactive waste disposal
facility" means any facility operated
pursuant to G.S. 104G for the purpose
of low-level radioactive waste disposal
and licensed pursuant to Section . 1200
of this Chapter.
"Manifest" means the document used

for identif\'ing the quantity, composi-
tion. origin and destination of low-level

iSi

radioactive waste during its transport to
a disposal facility.

"Processor" means any person who
recei\es lov'.-level radioacti\e v.'aste or
radioacti\'ely contaminated material
from another site access licensee for the
purpose of repackaging or treatment,
including, but not limited to. compac-
tion, incineration, decontamination or
resource recovers', prior to transfer to a
disposal facility located in North Caro-
lina.
"Radioactive material license" means

(9]

021

iUl

(15)

any license issued by the agency, an
agreement state or the U^ S^ Nuclear
Regulatory Commission which authoriz-
es activities which may generate waste.
"Shipment" means the total low-level
radioactive waste transported in a single
conveyance as defined in 49 CFR ^
173.403.

"Shipper" means any person who holds
a valid site access license and prepares
low-level radioactive waste for trans-
port to a low-le\'el radioactive waste
disposal facility located in North Caro-
lina.

"Site access license" means a license
issued pursuant to the rules in this
Section authorizing the licensee to have
access for the purpose of disposal to a
low-level radioactive waste disposal
facility located in North Carolina.
"Solidifying" means that process by
which liquid wastes or wastes contain-
ing liquids are converted into an accept-
able stable form as defined m Rule
.0426 of this Chapter.
"Southeast Compact" means the South-
east Interstate Low-Level Radioactive
Waste Management Compact as set out
in G.S. 104F.

"Stabilizing" means that process by
which radioactive wastes are prepared
to meet the stability requirements as
defined m Rule .0426 of this Chapter.
"Transport" means the movement of
low-level radioactive waste in North
Carolina for the purpose of disposal at
a low-level radioactive waste disposal
facility located in North Carolina.
"Waste" means "lov,'-le\el radioactix'e
waste".

(b) Definitions of certain other words and
phrases used in this Section are set forth in other
sections of this Chapter.

Statutary Authority G.S. 104E-5; 104E-7;
W4E-10.3: 104E-27.

.1503 LICENSE REQUIRED

(a) No person shall ship or transfer waste to a
lov.'-level radioactive waste disposal facility located
in North Carolina, except as authorized by a valid
site access license issued, prior to shipment or
transfer, pursuant to the rules in this Section.

(b) A separate site access license is required for
each generator, collector and processor facility

1521

7:15

SORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

from which waste, which will be transferred to a
low-level radioactive waste disposal facility located
in North Carolina, is shipped.

(c) The agency shall not issue any site access
license authorizing disposal of waste generated
outside the Southeast Compact region unless:

( 1) the U.S. Nuclear Regulatory Commis-
sion has granted emergency access as
authorized under the Low-Level Radio-
active Waste Policy Amendments Act
of 1985, provided that access shall be
limited to that granted by the U.S.
Nuclear Regulatory Commission and
complies with Rule . 1517 of this Sec-
tion; or

(2) access has been granted by the South-
east Compact Commission ]n accor-
dance with provisions of G.S. 104F and
complies with all requirements of this
Section.

Statutory Authority G.S. 104E-10.3: 104E-27.

.1504 APPLICATION FOR SITE ACCESS
LICENSE: GENERAL
REQUIREMENTS

(a) Each applicant for a site access license shall
file a completed agency application form. The
completed application shall include the following
information and other information required by the
agency:

(1 ) name, address, telephone number, and
description of the business of the appli-
cant;

(2) a list of radioactive material licenses
issued to the applicant along with the
name of the regulatory agency that
issued each license;

(3) name, address and telephone number of
the facility for which a site access
license is requested;

(4) name and telephone number of the
person who is responsible for the
applicant's waste management plan;

(5) organization chart which depicts the
relationship among senior level manage-
ment, managers of waste generating and
waste management activities, and the
person identified in Subparagraph (a)(4)
of this Rule;

(6) general transportation routing informa-
tion, within the State of North Caroli-

na^ of waste shipments, including but
not limited to waste transported for
processing and waste transported for

disposal at the North Carolina disposal
facility; and
(7) certifications and additional information
required by other applicable rules in
this Section.

(b) The agency may at any time after the filing
of the application, and before the expiration of a
site access license, require further statements and
information to enable the agency to determine
whether a site access license should be granted,
denied, modified, suspended or revoked.

(c) Each application for a site access license
shall be signed by the manager of the facility for
which the site access license is re quested or by his
designee, provided that such designation shall be
confirmed to the agency, in writing, by the manag-
er.

(d) Except as provided in Paragraph (e) of this
Rule, applications and documents submitted to the
agency are public documents and may be made
available for public inspection.

(e) Notwithstanding Paragraph (d) of this Rule,
the applicant may request that specific parts of the
a pplication and supporting documents which
contain proprietary information be withheld from
public inspection. Such request shall include a
detailed justification for each part which is pro-
posed to be withheld. The agency may approve
such requests in whole or in part, if the agency
determines that public disclosure is not required m
the public interest and would adversely affect the
interest of the applicant. All agency approvals
shall be made in writing and shall be available for
public inspection.

(f) The applicant shall submit the application for
a site access license required by this Section to the
agency at the address in Rule .01 1 1 of this Chap-
ter.

(g) If the facility is not located in North Caroli-
na, the applicant shall also submit a copy of the
application to the state radiation protection regula-
tory agency irii or if none, to such other state
agency designated by the state in which the facility
is located.

(h) If the facility is licensed by the U.S. Nuclear
Regulatory Commission, the applicant shall also
submit a copy of the application to the U.S.
Nuclear Regulatory Commission.

Statutory Authority G.S. 104E-10.3; 104E-27:
104E-29.

.1505 APPLICATION FOR SITE ACCESS
LICENSE - WASTE GENERATORS

If the applicant for a site access license is a waste

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1522

PROPOSED RULES

generator, the application required in Rule . 1504
of this Section shall include the following addition-
al information:

I 1 1 general description of the activities which
invohe the production of waste along
with the radioacti\-e material license
numbers under which such activities are
conducted:

(2) general description of existing on-site
waste management, to include facilities.

(b)

ic)

(di

(i)

ia)

iii

(a)

Lbi

equipment, procedures and programs for:
limiting the production of contaminated
material and contained radioacti\it\'
which must be managed, and the esti-
mated annual impact on the amount of
material and radioactivit\':
reducing the \olume and contained
radioacti\ it\- of waste which v.ill be
shipped, or transferred to collectors for
shipment, to off-site disposal facilities,
and the estimated annual impact on the
Nolume and contained radioacti\ itv
shipped or transferred:
classif\ing. stabilizing. solidifv'ing
liquids, packaging and monitoring
waste prior to shipment or transfer to a
collector for shipment to a disposal
facility located in North Carolina: and
qualit\' assurance and quality control:
description of existing off-site waste
management, to include:
name, address, telephone number. t\'pe
of processing and radioacti\'e material
license number of each off-site proces-
sor to which waste referenced in Sub-
Item (2)(b) of this Rule will be shipped:
and

estimated annual impact on the \olume
and contained radioacti\ it\- which will
ultimately be shipped to a disposal
facilitN' located in North Carolina:
description of planned changes in on-site
and off-site management described in
Items (2) and (3) of this Rule, to include
anticipated date for implementation and
estimated annual impact on the volume
and contained radioacti\ity of waste
which will be disposed at a disposal
facilit\- located in North Carolina:
histor\' of off-site waste disposal for the
past fi\e \ears. to include:
identification of all disposal facilities
which receised waste for disposal: and
the total \olume and contained radioac-
ti\ ity of waste disposed each year:

(6) description of the projected waste which
will be disposed at a disposal facility
located in North Carolina for each of the
next five years, to include the projected
N'olume and contained radioactivity for
Class A. Class B and Class C waste:

(7) any regulatory notices of violation and
corrective actions related to on-site and
off-site management described in Items
(2) and (3) of this Rule during the past
five years: and

(8) description of the applicant's notification
and emergency response program in the
event of accidents during transportation.
This description shall include the qualifi-
cations and responsibilities of the dri\er.

Statutory Authority G.S. W4E-10.3: 104E-27.

.1506 CONTENT OF APPLICATION FOR
WASTE COLLECTORS

If the applicant for a site access license is a waste
collector, the application required in Rule . 1504 of
this Section shall include the following additional
information:

( 1 ) radioactixe material license numbers
under which waste collection activities
are conducted:

(2) complete description of the applicant's
current waste collection and handling
program, to include:

(a) a list of the states in which waste col-
lection seryices will be provided:

fb) a list of the •waste processors and waste
disposal facilities to which collected
waste ma\' be shipped:

waste collection at customer facilities:

iiii

(iii)

handling. identif\'ing. accounting for.

and segregating the waste shipped to

waste processors and waste disposal

facilities:

ensuring that waste shipped to a waste

disposal facility located in North

Carolina is collected onl\ from per-

(IV)

(V]
(vi)

sons who hold a currently valid site
access license issued pursuant to the
rules in this Section:
ensuring that packages, labels, \ehi-
cles. placards, and radiation and
contamination le\els comply with
applicable state and federal regula-
tions:

quality assurance and qualit\ control:
notifications and emergenc\ response

1523

7;/.5

NORTH CAROLIXA REGISTER

\ovemher 2. 1992

PROPOSED RULES

in the event of accidents during trans-
portation, including the qualifications
and responsibilities of the driver;

(3) a list of the waste processing and dis-
posal facilities to which collected waste
was shipped during the past five years;
and

(4) any regulatory notices of violation and
corrective actions related to on-site and
off-site management described in Items
(2) and (3) of this Rule during the past
five years.

Statutory Authority G.S. 104E-10.3; 104E-27.

.1507 CONTENT OF APPLICATION FOR
WASTE PROCESSORS

If the applicant for a site access license [s a waste
processor, the application required in Rule . 1504
ot" this Section shall include the following addition-
al information:

( 1 ) the applicable information required by
Rule . 1505 of this Section, if the waste
processor is located within the Southeast
Compact and generates waste which will
be disposed at a disposal facility located
in North Carolina;

(2) a Hst of the states from which waste may
be received for processing;

(3) description of waste processing services
and management, to include:

(a) the radioactive material license numbers
under which such activities are conduct-
ed,

(b) the types of waste processing services,
description of the wastes which may be
processed and the estimated impact of
the processing on:

(i) volume and contained radioactivity of
processed waste which will be shipped
to off-site disposal facilities; and

(ii) suitability of processed waste for
disposal;

(i) handling, identifying, accounting for,
and segregating waste attendant to
processing and shipment to off-site
waste disposal facilities:

(ii) ensuring that processed waste shipped
to a waste disposal facility located in
North Carolina is waste generated by
persons who hold a currently valid
site access license issued pursuant to
the rules In this Section;

(iii) classifying, stabilizing, solidifying

liquids, packaging and monitoring
waste prior to shipment, or transfer to
a collector or the generator for ship-
ment, to a disposal facility located m
North Carolina;

(iv) preparing manifests and correlating
manifests with the original manifests
prepared by the waste generators for
processed waste which will be dis-
posed at a disposal facility located in
North Carolina;

(v) ensuring that packages, labels, and
radiation and contamination levels
comply with a pplicable state and
federal regulations; and

(vi) quality assurance and quality control;

(4) a Hst of the waste disposal facilities to
which processed waste was shipped
during the past five years;

(5) for each of the past five years, a sum-
mai-y of the volumes and types of waste
processed and the resulting volumes of
processed waste shipped off-site;

(6) description of the applicant's notifica-
tion and emergency response program
in the event of accidents during trans-
portation. This description shall include
the qualifications and responsibilities of
the driver; and

(7) any regulatory notices of violation and
corrective actions related to on-site and
off-site management described in Items
(2) and (3) of this Rule during the past
five years.

Statutory Authority G.S. 104E-10.3: 104E-27.

.1508 CERTIFICATION OF COMPLIANCE
WITH APPLICABLE
REQUIREMENTS

(a) Each shipper who prepares packages of
waste for shipment to a disposal facility located in
North Carolina shall certify that:

(1 ) the packages and contained waste com-
ply fully with all disposal site restric-
tions and acceptance criteria and with
all applicable state and federal laws and
regulations including, but not limited
to. those governing manifests, labeling,
radiation and contamination levels and
package design and performance; and

(2) the prior notification required by Rule
. 1509 ot" this Section will be made for
each shipment of waste.

(b) Each shipper who transports packages of

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1524

PROPOSED RULES

waste, using shipper-controlled drivers or \ehicles.
to a disposal facility located in North Carolina
shall certif)' that such transportation, transport
\ehicles. placarding, and driver training will
compK' fully ^ith all applicable disposal facility
license conditions and acceptance criteria, and state
and federal laws and regulations.

(ci The certification requirements specified in
this Rule shall be in v>Titten form and shall accom-
pan\' each separate shipment of waste shipped to
the North Carolina disposal facility.

(d) The disposal facility operator shall provide
to the agency for each shipment of accepted waste
at the North Carolina disposal facility a copy of
the \\ ritten certification that accompanied each
shipment of waste.

Srarurory Authorirx G.S. 104E-10.3; 104E-27.

.1509 PRIOR NOTIFICATION FOR WASTE
SfflPMENTS

(a) Prior to each shipment of waste to a disposal
facilit\ located in North Carolina, both the agency
and the facility operator shall recei\'e written
notice from the shipper no less than 72 hours and
no earlier than 30 days before the expected date of
arrival of the shipment at the disposal facility.

(b) The prior notification required in Paragraph
(a) of this Rule shall be filed on a "Radioacti\'e
Waste Shipment Prior Notification Form", or
appropriate form(s) appro\'ed by the agency and
which shall include the following:

1 1 ) name and address of shipper:

(2) person responsible for waste shipment,
including:

(A) name

(B) title: and

(3) site access license number of the ship-
per and the site access license number
of any other generator, processor, or
collector invoh'ed with the waste:

(4i shipment identification number originat-
ed by and obtained from the disposal
facility operator:

1 5 1 location from v.hich v.aste will be

shipped:

(6) name and address of consignee:

(7) scheduled date of departure of ship-
ment:

(8) estimated date of arrival of shipment:

(9) carrier:

(10) trailer number and owner, if available:

(11) type of transport vehicle:
( I2i transportation route:

(13) type of package or cask model number:

( 14) type of container in cask:

( 15) package or cask specification:

( 16) complete waste description:

( 17) physical and chemical form:

(18) total number of packages:

( 19) prominent radionuclides:

(20) total curies:

(21 ) waste class and stability:

(22) total cubic feet;

(23) U.S. Department of Transportation Sub
Type j^ such as Low Specific Activity:

(24) U.S. Department of Transportation
Identification Number;

(25) indication of highway route controlled
quantity;

(26) such other information as the agency
may require;

(27) signature block certif\'ing validity of
information provided; and

(28) signature block for consignee.

(c) The shipper shall immediately notify' the
agency and the facility operator of any cancella-
tions or changes in the prior notification form
which may occur immediately prior to the ship-
ment departing from the facility enroute to the
disposal facility; including, but not limited to the
date of arrival, total number of packages, curie
content, volume, or waste classification. This
notification may be transmitted via documented
telephone conversation, or the use of telecopy or
facsimile machine.

(d) No shipment of waste to a disposal facility in
North Carolina shall commence until the shipper
has received and documented confirmation from
the operator of the disposal facility that the infor-
mation pro\ ided on the prior notification form and
any changes, as identified by the requirements in
Paragraph (c) of this Rule, comply vv'ith the condi-
tions of the facility operator's license.

(e) With each separate shipment of waste to the
North Carolina disposal facility the shipper shall
provide to the carrier a copy of the prior notifica-
tion form required by Paragraph (a) of this Rule
for deliver\' to the disposal facility operator. This
copy shall reflect any changes made pursuant to
Paragraph (c) of this Rule.

(f) Following the acceptance of each shipment of
waste at the North Carolina disposal facility, the
disposal facility operator shall sign the prior
notification form and submit signed copies to the
agency and to the shipper within one v,eek after
acceptance.

(g) The prior notification form required in this
Rule is in addition to the manifest requirements in

152>

7:15

XORTH CAROLIXA REGISTER

\ovember 2, 1992

PROPOSED RULES

Rule .1510 of this Section.

Sruriitory Authority G.S. 104E-10.3; 104E-27.

.1510 RADIOACTIVE SfflPMENT
MANIFEST

(a) A manifest completed by the shipper, on
forms supplied by the disposal facility operator,
shall accompany each shipment of waste to a
disposal facility located in North Carolina and
shall include all information and certifications
required by the rules in this Chapter and the
disposal facility operator's license conditions.

(b) If the shipper is a waste processor, the
manifest required in Paragraph (a) of this Rule
shall reflect consolidation of the original waste
generator manifests related to the waste shipment
except that such copies are not required and also.
if included with the shipment, for waste generated
by the waste processor; provided however, that the
manifest shall be accompanied by a certification
that the waste generated by the waste processor is
appropriate for disposal at a disposal facility
located in North Carolina.

Statutory Authority G.S. W4E-W.3; W4E-27.

.1511 FINANCIAL QUALIFICATIONS AND
REQUIREMENTS

(a) The purpose of this Rule is to defray expens-
es incurred by the State of North Carolina for any
project or activity for emergency response to and
decontamination of radioactive waste transportation
accidents involving the possible or actual release of
radioactive materials and to defray the costs to the
State for performing or supervising decontamina-
tion and to otherwise protect the public health and
safety .

(b) The agency shall not issue a ske access
license until the applicant has satisfied the surety
bond or insurance requirements m this Rule.

(c) The applicant must deposit and maintain with
the agency a minimum cash or coiforate surety
bond in the amount of five hundred thousand
dollars ($500.000). or provide the agency satisfac-
tory evidence of liability insurance or provide a
certificate of insurance as an added insured on a
policy held by a site access licensee that satisfies
the insurance requirements of this Rule.

( 1 ) For purposes of the rules in this Sec-
tion, liability insurance shall mean
coverage of one million ($1 .000.000)
per occurrence and five million
($5.000.000) aggregate:

(2) Any insurance carried pursuant to

Section .2210 of Title 42 of the United
States Code and K) CFR MO shall be
sufficient to meet the requirements of
this Rule; and
(3) Liability insurance shall be specific to
the packaging, transportation, storage
and delivery of radioactive waste.

(d) An applicant maintaining liability insurance
for the pui'pose of this Rule shall provide to the
agency a certificate of insurance from their insurer
indicating the policy number, limits of liability,
policy date and specific coverage for packaging,
transportation, storage and delivery of radioactive
waste.

(e) A cash or corporate surety bond previously
posted for the purposes of this Rule shall be
returned to the site access licensee upon written
notification to the agency of his intention to cease
shipments of radioactive waste to the North Caroli-
na disposal facility, provided such bond shall be
returned only after the last such shipment has been
accepted safely at the disposal facility.

(f) Agencies of the State of North Carolina shall
not be subject to the requirements of this Rule.

(g) TTie agency may require a greater amount of
surety bond or liability insurance than stated in
Paragraph (c) of this Rule.

(h) The indemnitor on such a bond or an insur-
ance company for any purpose of this Rule shall
be licensed to do business in tlie State of North
Carolina.

Statutory Authority G.S. 104E-10.3; 104E-27.

.1512 WASTE MANAGEMENT AND
REDUCTION REQUIREMENTS

(a) The purpose of this Rule is to define those
elements which may constitute a sound waste
management program and to require each applicant
for a site access license or renewal of an existing
site access license to explain how each element is
implemented or. if not implemented, why its
omission is justified.

(b) Those elements and sub-elements which
constitute sound waste management practices
include, but are not limited to. the following:

(1 ) waste avoidance

(A) process controls

(B) training

(D) leak prevention

(E) segregation

(F) recycling

(G) reduction in size of facility contami-
nated areas

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1526

PROPOSED RULES

(H) radionuclide selection
(2) volume or activity reduction

(A) storage for decay

(i) waste containing no radionuclides
with a radioactive half-life ex-
ceeding 90 days

(I) hold for decay of contained
radioactivity and subsequent
disposal as non low-le\el
radioactive waste

(II) hold for partial decay

(ii) waste containing radionuclides
with a radioactive half-life ex-
ceeding 90 days ; hold for partial
decay

(B) decontamination of equipment, materi-
als or other items

(U on-site
(ii) off-site

(i) on-site
(ii) off-site

(D) compaction
(ii on-site

(I) super compaction

(II) other compaction

(ii) off-site super compaction

(E) incineration
(jj on-site
(ii) off-site.

(c) The applicant shall indicate the extent to
which each of the elements and sub-elements listed
in Paragraph (b) of this Rule and any other waste
management practices are being employed in the
applicant's waste management program.

(d) For each element and sub-element listed in
Paragraph lb) that js not employed in the
applicant's waste management program, the appli-
cant shall provide a justification for its omission
which shall include a schedule for implementation.
if future implementation is planned. The justifica-
tion shall include an explanation of whether or not
waste appropriate for such element or sub-element
is generated by the applicant.

Statuion- Authority G.S. 104E-I0.3: 104E-27.

.1513 ISSUANCE AND EXPIRATION OF
SITE ACCESS LICENSES

(a) The agency will issue a site access license
only after the following determinations are made
and upon agency certification to the North Caroli-
na Low-Le\'el Radioactive Waste .Management
.Authority that the generator is reducing waste
\olume to tlie extent technologically and economi-

cally feasible:

(1 ) The applicant has submitted a license
application which adequately demon-
strates the applicant's ability to satisfy
all requirements In the rules of this
Section;

(2) The applicant has a waste management
program which incorporates best man-
agement practices, including preven-
tion, minimization, reduction, segrega-
tion, and hold for decay storage, as
provided m Rule .1512 of this Section:

(3) The applicant is reducing waste volume
and contained radioactivity to the extent
technologically and economically feasi-
ble, including off-site processing, be-
fore waste is disposed at a disposal
facility located in North Carolina, or
has made a commitment to institute
such methods in accordance with a
timetable specifically approved by the
agency:

(4) The applicant has filed the bonds,
insurance or other security with the
agency as required in Rule .1511 of this
Section: and

(5) The applicant will ship waste to a dis-
posal facility located in North Carolina
only when such waste is generated in
the Southeast Compact region, except
as provided otherwise for waste gener-
ated by waste processors and authorized
pursuant to Item ( 1) of Rule . 1507 of
this Section or as provided in Rule
.1503(c) of this Section.

(h) Except as provided in Rules . 1513 and
.1517 of this Section, a site access license shall be

effective for a period of five years subject to
payment of applicable fees imposed by the Rules
in Section . 1 100 of this Chapter.

(c) Notwithstanding the provisions of Paragraph
(b) of this Rule, any site access license fs subject
to modification, revocation or suspension in
accordance with provisions of Rule .1516 of this
Section.

(d) The licensee shall apply for amendment of
the site access license in accordance with Rule
.1515 of this Section prior to making changes fn
the waste management program described in the
license application which would diminish the
effectiveness of the waste management program,
for example, a change resulting in an increase of
waste volume and radiation exposure.

(e) Should any information required by Para-
graph (a) of Rule . 1 504 change, the licensee shall

1527

7:15

NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

notify the agency of such changes in writing no
later than 60 days after the change and file an
application for amendment, if so directed by the
agency.

Statutory Authority G.S. 104E-10.3; 104E-27.

.1514 SITE ACCESS LICENSE RENEWAL

(a) An application for renewal of a site access
license shall be filed in accordance with Rule
.1504 of this Section.

(b) When a site access licensee has filed an
application in proper form for renewal not less
than 30 days prior to expiration of his existing
license, the existing site access license shall not
expire until the agency has taken final action on
the application.

(c) When a site access licensee files an applica-
tion for renewal less than 30 days prior to expira-
tion of his existing site access license, the licensee
shall not have access to a disposal facility located
in North Carolina after the expiration date until the
agency has issued final approval of the application.

(d) As a precondition for renewal of a site
access license, the applicant shall satisfy the
provisions of Rule .1512 of this Section.

Statutory Authority G.S. 104E-10.3: 104E-27.

.1515 SITE ACCESS LICENSE
AMENDMENT

(a) An application for amendment of a site
access license shall be filed in accordance with
Rule .1504 of this Section and shall specify the
manner in which the licensee desires the site
access license to be amended and the grounds for
such amendment, along with any other supporting
information which may be required by the agency.

(b) In determining whether an amendment to a
site access license will be approved, the agency
shall apply the criteria set forth in Rule .1513 of
this Section.

Statutory Authority G.S. 104E-W.3; 104E-27.

.1516 MODIFICATION. REVOCATION,

AND TERMINATION OF LICENSES

Site access licenses are subject to modification,
suspension, revocation and termination in accor-
dance with the provisions of Rule .0344 of this
Chapter.

Statutory Authority G.S. I04E-10.3; 104E-27.

.1517 TEMPORARY OR EMERGENCY

ACCESS

(a) The agency may grant temporary or emergen-
cy access to a disposal facility located m North
Carolina to a generator in the Southeast Compact
region, only if

(1) access is necessary in order to eliminate
an immediate and serious threat to the
public health and safety;
the determination is made that the threat

12]

£3}

cannot be mitigated by any other alter-
native consistent with the public health
and safety, including ceasing the activi-
ties that generate the waste; and
the waste form and content of the waste

to be disposed, meets all acceptability
requirements as stated in the facility
operator's license.

(b) The agency may grant temporary or emer-
gency access to a disposal facility located in North
Carolina to a generator outside the Southeast
Compact region, only after:

(1) Such access has been granted by the
U.S. Nuclear Regulatory Commission
in accordance with applicable provi-
sions of federal regulations and of the
Low-Level Radioactive Waste Policy
Amendments Act of 1985; and

(2) The agency has reviewed and concurs
with the U.S. Nuclear Regulatory
Commission's decision to grant tempo-
rary or emergency access.

(c) Temporary or emergency access to a dispos-
al facility located in North Carolina is subject to
the applicable site access licensing requirements in
this Section and to the fee requirements in Section
■ 1100 of this Chapter.

(d) Notwithstanding the provisions of Rule
.1513 of this Section, a site access license, autho-
rizing temporary or emergency access, shall be
effective only for the period of time and the
specific waste for which temporary or emergency
access was granted.

Statutory Authority G.S. 104E-10.3; 104E-27.

TITLE 21 - OCCUPATIONAL
LICENSING BOARD

iSotice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Board of
Nursing intends to amend rule cited as 21 NCAC
36 .0220.

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1528

PROPOSED RULES

J he proposed effective date of this action is
February 1. 1993.

1 he public hearing will be conducted at 1:00
p.m. on December 10. 1992 at the North Carolina
Board of Nursing Office. 3724 National Drive,
Suite 201. Rcdeigh. North Carolina 27612.

tveason for Proposed Action: To clarify,
strengthen and update in order to be consistent
with the current policies and procedures.

C^onv7ient Procedures: Any person wishing to
present oral testimony relevant to proposed rules
may register at the door before the hearing begins
and present hearing officer with a written copy of
testimony. Written statements may be submitted
directed five days prior to the hearing date to the
North Carolina Board of Nursing. P. O. Bo.x
2129. Raleigh. NC 27602-2129.

CRAPTER 36 - BOARD OF NXTISENG

SECTION .0200 - LICENSURE

.0220 REFRESHER COURSE

(a) The curriculum for a A refresher course
must shall be designed for those persons. pre\ious-
ly licensed, who are ineligible are not eligible for
re-entn,' into nursing practice because they have
the legal practice of nursing

not been cngag;:

allowed their license to lapse for five or more

years .

(Id) Satisfactorv completion of a Board-approved
refresher course is required of the person who:

(1) requests reactivation of an inactive
license and who has not held an acti\'e
license for fi\'e or more years;

(2) requests reinstatement of a lapsed li-
cense and who has not held an acti\'e
license for fi\e or more years; ef

(3) requests reinstatement of a lapsed H;
cense and who has not held an active
license for fi\e or more years; or

(4)f3-) is directed by the Board to complete

such a course when the Board takes

action as authorized in G.S. 90-

171.37.

course mu s t shall be completed and pre s ented

submitted by the provider at least 90 days prior to

the expected date of enrollment and mu s t shall

include evidence of complying with the rules for
refresher courses. Board approval must shall be
secured prior to the enrollment of students.
Provider approval will be granted for a period of
time not to exceed three five years. However, any
changes in faculty, curriculum, or clinical facilities
must shall be approved by the Board prior to
implementation.

(d) The Board will make site visits if necessarv'.
A decision on an application to offer a refresher
course will be given within 30 days following
receipt of the application.

(e) The provider of a Board-approved refresher
course must shall be a Board-approved, post-
secondarv' educational institution, ©f a Board-
approved health care institution, or other agency
acceptable to the Board .

(f) Administrative responsibility for developing
and implementing the course mu s t shall be vested
in a registered nurse director.

(g) Instructors in the course mu s t shall be
directly accountable to the nursing director. The
director shall have had at least one year prior
teaching experience preparing individuals for LPN
or RN licensure at the post-secondary level or in
a nursing staff development position . The director
and each instructor must shall :

(1) hold a current North Carolina license to
practice nursing as a registered nurse;

(2) hold a baccalaureate or higher degree;
and

(3) have had at least two years experience
in direct patient nursing practice as an
RN. r^iftd

f+) demonstrate an up to date knowledge of

clinical nursing.
(h) Proximity of the instructor to students is the
major factor in determining faculty-student ratio
for clinical learning experiences. In no case shall
this ratio exceed 1 :10.
(i) Course objectives must be stated which:

(1) show relationships between theon,' and
practice; and

(2) indicate behaviors consistent with the
competent ability to safely practice &f
nursing.

(j) The curriculum for the R.N. Refresher
Course must shall incorporate:

(1) common medical-surgical conditions
and management of common nursing
problems associated with these condi-
tions, including mental health principles
associated with management of nursing
problems;
+3-t major change s in pattern s of health care

1529

7:15

NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

delivery and current trcnda in nursing
education:

(2)-f^ functions of the registered nurse ifi
asae sa ing clienta' needs and planning
individualized nursing earc; as defined
in OS, 90-171.20 and 2i NCAC
36.0221, .0224. .0225 and .0401; and

£3}-f4) instruction in and opportunities to dem-
onstrate wttlt confidence and — safety
ability to safely practice nursing skills
and knowledge in caring for clients
with common medical-surgical prob-
lems,
(k) The curriculum for the L.P.N. Refresher
Course mu s t shall incorporate:

(1) common medical-surgical conditions
and common nursing approaches to
their management, including mental
health principles:

(5^ major changes in patterns of health care

deliver^':

(2)^ functions of the licensed practical
nurs e, including the nurse's relation
ship to the health care team; as defined
in G^ 90-171.20 and 2i NCAC
36.0221, .0225, and .0401; and

£3}{4) instruction in and opportunity to dem-
onstrate wrtlt confidence and — safety
ability to safely practice nursing skills
and knowledge in caring for clients
with common medical-surgical prob-
lems.
(1) The course must shall include both theory
and clinical instruction:

(1) The R.N. Refresher Course must shall
include at least 240 hours of instruc-
tion, at least 120 of which mu s t shall
consist of clinical learning experiences.

(2) The L.P.N. Refresher Course must
shall include at least 180 hours of in-
struction, at least 90 of which must
shall consists of clinical learning experi-
ences.

(m) Evaluation processes must shall be imple-
mented which effectively measure:

(1) knowledge and understanding of curric-
ulum content; and

(2) clarify individuals ability to administer
provide safe nursing care with confi
denee and s afety to clients with com-
mon medical-surgical conditions.

(n) Clinical resources must shall :
( 1) be vt'illing and able to indicate m writ-
ten contract their support and availabili-
ty to provide the necessary clinical

experiences; and
(2) be approved by the Board of Nursing,
(o) The application for approval of a refresher
course must shall include:

(1) course objectives, content outline and
time allocation;

(2) didactic and clinical learning experienc-
es including teaching methodologies,
and evaluation plans for measuring the
registrant's abilities to practice nursing;

£3) plan for evaluation of student compe-
tencies and ability to practice safe
nursing;
(4)-f^ a faculty list which includes the director
and all instructors and identifies their
qualifications and their functions in
teaching roles; and
(5)-f4) clinical resource s to be used and the
projected clinical schedule.
(p) A course or combination of courses within a
basic nursing curriculum may be considered a
refresher course for re-entry into practice if:

(1) such course or combination of courses
equals or exceeds requirements for
refresher courses;

(2) such course or combination of courses
is taught on a level commensurate with
level of relicensure sought; and

(3) the Board designee approves such
course or combination of courses as a
substitute for a refresher course.

(q) Individuals, previously licensed in North
Carolina, presently residing outside of North
Carolina, may meet these requirements by success-
fully completing a North Carolina approved re-
fresher course completed in another state or
country. Agencies desiring approval for conduct-
ing refresher courses shall submit applications per
Paragraphs (c) through (p) of this Rule. Clinical
experiences shall be in agencies approved by the
comparable state/country agency to the Board of
Nursing. The agency applying for refresher
course approval shall submit evidence of the
agency approval.

(r) Individuals enrolled in refresher courses shall
identify themselves as R.N. Refresher Student (RN
RS) or LPN Refresher Student (LPN RS) consis-
tent with the course level, after signatures on
records or on name pins.

(s) fq) Upon completion of a Board-approved
refresher course, the course provider wttt shall
furnish the Board with the names and North
Carolina certificate numbers of those persons who
have satisfactorily completed the course and are
deemed competent safe to practice nursing at the

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1530

PROPOSED RULES

appropriate level of licensure on the Board sup
plied form .

iUfH Upon request, the The Board shall publi s h
provide:

(1) a list of approved providers;

(2) and shall provide forms for applications
for program approval; and

(3) forms for verification of successful
completion to all approved programs.

Srarurory- Authoriry G.S. 90-171 .23(b)(3); 90-
171.35: 90-171.36; 90-171.37.

TITLE 23 - DEPARTMENT OF
COM]VlUNIT\ COLLEGES

lyotice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Department of
Community Colleges intends to adopt rules cited as
23 NCAC lA .0001 - .0005, IB .0101 - .0108.

1 he proposed effective date of this action is July
1. 1993.

1 he public hearing will be conducted at 10:30
a.m. on November 18. 1992 at the Auditorium of
the Highway Building. 11 South Wilmington Street,
Raleigh. NC 27601-1494.

tveason for Proposed Action: To standardize
terms used throughout Title 23, to clarif- the
mission of the department, to update and consoli-
date similar rules, and to describe the
department 's rulemaking procedure.

(comment Procedures: Interested persons nui\
present statements either orally or in writing at the
public hearing, or in writing delivered or mailed,
addressed to: Clay Tee Mines or Bill Cole, De-
partment of Conununity Colleges, 200 West Jones
Street, Raleigh, NC 27603. Written comments
must he received by 5:00 p.m. on December 2.
1992.

CHAPTER 1 - GENERAL PROVISIONS

SUBCIL\PTER lA - ORGANIZATION

.0001 DEFINITIONS

The following terms shall ha\e the following
meanings throughout this Title unless the context
of a specific rule requires a different interpreta-

tion:
ill

Credit Hours:

Icl

(4]
i5j

16)

Credit of one quarter hour is awarded
for each 1 1 hours of "class work".
Class work is lecture and other class-

room instruction. Class work [s under
the supervision of an instructor.
Credit of one quarter hour is awarded
for each 22 hours of "laboratory'" work.
Laboratory involves demonstration by
instructor, experimentation, and prac-
tice by students. Laboratory is under
the supervision of an instructor.
Credit of one quarter hour [s awarded
for each 33 hours of "manipulative
laboratory or shop" or "clinical prac-
tice". Manipulative laboratory, shop or
clinical practice in\'olve development of
manual skills and job proficiency.
Manipulative laboratory or shop or
clinical practice is under the supervision
of an instructor.

Credit of one quarter hour is awarded
for 1 10 hours of "work experience"
such as cooperative education,
practicums. and internships. Work
experience in\olves the development of
job skills by providing the student with
an employment situation that is directly
related to. and coordinated with, the
educational program. Student activity
in v^ork experience js planned and
coordinated by a college representative,
and the employer is responsible for the
control and supervision of the student
on the job.
Non-Credit Hours. Practice hours are
non-credit hours, inxohe the student in a
practice session to de\elop skills, and are
under the supervision of an instructor.
Full-time Student means a student en-
rolled in 12 or more credit hours.
Part-time Student means a student en-
rolled in less than 12 credit hours.
FTE means one full-time equivalent
(FTE) student and represents one student
enrolled in J_6 student membership hours
per week for 1 1 \>,'eeks or 176 student
membership hours per quarter.
Average Annual FTE means that the
average of the summer, fall, winter, and
spring quarter FTE may be referred to as
"four-quarter average" FTE.
Budget Full-time Equivalent B/FTE. The
B/FTE is used to prepare the operating

1531

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NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

budget and to provide for an equitable
distribution of the operating funds allo-
cated by the State Board of Community
Colleges, hereafter referred to as the
State Board, to colleges.
Equipment Full-time Equivalent (E/FTE).
The E/FTE is used to prepare the equip-
ment budget and to provide for an equita-
ble distribution of the equipment funds
allocated by the State Board to the colleg-
es.

Library Full-time Equivalent (L/FTE).
The L/FTE js used to prepare the library
budget to pro\'ide for an equitable distri-
bution of librar>' funds that are allocated
for the purchase of librar\' books and
audiovisual materials.
( 10) College means any institution established
pursuant to Chapter 1 15D of the General
Statutes except for Applied Technology
Centers.
Note: Substance of 23 NCAC 2D .0317 and 2E
.0104 was incorporated into this Rule.

Statutory- Authority G.S. 115D-5: 115D-54.

.0002 MISSION OF THE DEPARTMENT
OF COMMLTVIT^ COLLEGES

The mission of the North Carolina Department of

Community Colleges, hereafter referred to as the

department, is to provide state level leadership and

administration for the community college system

through the System President as directed by the

State Board. The department:

(1) Provides to the State Board data and

information for planning and policy

development:

Recommends to the State Board policies
and strategies for carrying out policies;
Administers policies and procedures
adopted by the State Board and state
statutes enacted by the General Assembly
which affect the community college
system:

Represents the positions of the State
Board to the General Assembly, the
colleges of the community college system
and other relevant publics:
Provides technical and support services to
community colleges to enhance their
ability to deliver high quality educational
services to the people of North Carolina;
and
(6) Coordinates with other educational sys-

12]

13)

(4)

(5)

developing, implementing, and adminis-
tering educational programs, policies, and
procedures.

Statutory Authority G.S. 115D-1: 115D-5.

.0003 AUTHORITY

(a) The State Board derives its authority for the
community college system from Chapter 1 15D of
the General Statutes and within that authority is
granted power to organize and operate a depart-
ment to provide state-level administration of the
community college system.

• (bj Each college within the system operates
under the direction of a board of trustees, a corpo-
rate body, which derives its authority from the law
and rules of the State Board.

(c) The System President is directed to carry out
the rules of the State Board with respect to the
department and colleges.

(d) The System President is authorized by the
State Board to issue administrative memoranda
specifying the manner in which community colleg-
es, as well as staff members of the department, are
required to carry out policies of the State Board.

(e) All power and authority vested by law in the
State Board which relates to the internal adminis-
tration, regulation, and go\'ernance of any individ-
ual college of the community college system are
hereby delegated to the board of trustees of such
college with the following exceptions and reserva-
tions:

(1) Power or authority that is non-delegable
as a matter of law or because of the
nature of its exercise is not delegated;

(2) Power or authority m matters of
systemwide or inter-college importance
is reserved for determination by the
State Board;

(3) The State Board reserves the right to
rescind any power or authority as it
deems necessary; and

(4) More specifically, the governing au-
thority of the State Board, which super-
sedes local authority, pertains to the
assurance of:

(A) fiscal accountability.

(B) program accountability, and

Note: Substance of 23 NCAC 2A .0003 and 2B
.0303 was incorporated into this Rule.

Statutory Authority G.S. 115D-3: 115D-5: I15D-
12; 115D-25.

terns and state and federal agencies in

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1532

PROPOSED RULES

.0004 ORGANIZATION

The department fulfills its administrative respon-
sibilities through an organizational structure as
determined by the System President. The System
President may modify the organizational structure
as needed. Copies of the organizational structure
are a\'ailable m the:

Office of the System President

Department of Community Colleges

200 West Jones Street

Raleigh, NC 27603-1337

Note: Substance of 23 NCAC 2A .0002 was
incorporated into this Rule.

Srafurory Authority G.S. 115D-3.

.0005 STATE PLANNING

The State Board shall review the priorities of the
system and adopt a system-le\'el plan on at least a
biennial basis, coordinated v^'ith the budget cycle.
The plan shall take into account the current and
future needs of the system and clarify' the priorities
essential to carrying out the mission of the system.
Note: Substance of 23 NCAC 2B .0204 was
incorporated into this Rule.

Statutory Authority G.S. 1 15D-5.

SUBCHAPTER IB - PROCEDLUE

SECTION .0100 - RULENLAKING

.0101 PETITIONS

(a) Any person wishing to request the adoption,
amendment, or repeal of a rule made by the State
Board, department, shall make a request in a
petition addressed to:

(6) the effect of the proposed rule on exist-
ing practices in the area involved,
including cost factors; and

(7) the name and address of the petitioner.

(c) The System President or designee shall
determine, based on a study of the facts stated in
the petition, whether the public interest will be
served by granting the petition. The System
President or designee shall consider all the con-
tents of the submitted petition and any additional
information deemed relevant.

(d) Within 120 days of submission of the peti-
tion, the State Board or designee shall render a
decision. If the decision is to deny the petition.
the System President or designee shall notif,' the
petitioner in writing, stating the reason(s) for the
denial. If the decision is to approve the petition,
the State Board shall initiate a rulemaking proceed-
ing by issuing a rulemaking notice, as provided in
these Rules.

Statutory Authority- G.S. 143B-10ij){2): 150B-20.

.0102 NOTICE

(a) Upon a determination to hold a rulemaking
proceeding, either in response to a petition or
otherwise, the System President or designee shall
give notice to all interested parties in accordance
with G.S. 150B-12.

(b) Any person desiring information in addition
to that provided in a particular rulemaking notice
may contact:

System President

Department of Community Colleges

200 West Jones Street

Raleigh. NC 27603-1337.

Statutor\- Authority- G.S. 143B-W: 150B-12.2.

System President

Department of Community Colleges

200 West Jones Street

Raleigh. NC 27603-1337.

.0103 HEARING OFFICER

The System President, or one or more hearing
officers designated by the System President, shall
be hearing officer(s) in a rulemaking hearing.

Cb) The petition shall contain the following
information:

(1)

iii
(4)

either a draft of the proposed rule or a
summar\' of its contents;
the statutory' authority for the agency to
promulgate the rule;
the reasons for the proposal;
the effect of the proposed rule on exist-
ing rules;

(5) any data supporting the proposal;

Statutory Authority G.S. 150B-2(2b).

.0104 HEARLNGS

(a) Any person desiring to make an oral presen-
tation at a public hearing is encouraged to submit
a written copy of the presentation to the hearing
officer prior to or at the public hearing.

(b) Presentations may not exceed 10 minutes
unless, upon request made either before or at the
hearing, the hearing officer grants an extension of

1533

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NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

ill
(4}
i5j

time.

(c) Any person may file written comments after
publication of a rulemaking notice up to and
including the day of the hearing. The comments
must clearly state the rule or proposed rule to
which the comments are addressed and must also
include the name and address of the person submit-
ting them. Written comments must be sent to:

System President

Department of Community Colleges

200 West Jones Street

Raleigh. NC 27603-1337.

(d) The hearing officer shall have control over
the rulemaking hearing, including:

( 1 ) the responsibility of having a record

made of the hearing;

extension of any time allotments:

recognition of speakers;

prevention of repetitious presentations.

and

general management of the hearing.
The hearing officer shall ensure that each person
attending the hearing is given a fair opportunity to
present views, data, and comments.

Statutory Authority G.S. 143B-10; 150B-21.2.

.0105 STATEMENT OF REASONS FOR
AND AGAINST RULEMAKING
DECISION

(a) Any person who desires from the System
President a concise written statement of the princi-
pal reasons for or against the decision by the State
Board to adopt or reject a rule may, within 30
days after adoption of a rule, submit a request to:

System President

Department of Community Colleges

200 West Jones Street

Raleigh. NC 27603-1337.

(b) The request must be made m writing and
must identify the rule or proposed rule involved.

(c) The System President shall issue the state-
ment of reason(s) against the State Board's deci-
sion within 45 days after receipt of the request.

Statutory Authority G.S. 150B-21.2.

.0106 RECORD OF RULEMAKING
PROCEEDINGS

A record of aU rulemaking proceedings conduct-
ed by the State Board, including responses to

petitions for rulemaking, shall be maintained in the
office of the System President and shall be avail-
able for public inspection during regular office
hours. This record shall include:

(1) the original petition, if any;

(2) the notice;

(3) written presentation or submission;

(4) any written minutes or audio tape of the
oral hearing; and

(5) a final draft of the adopted rule.

Statutory Authority G.S. 150B-21.2.

.0107 FEES

A fee may be charged by the office of System
President to persons requesting materials from
hearing records. The fee will cover the cost of
meeting the request.

Statutory Authority G.S. 132-6.

.0108 DECLARATORY RULINGS

(a) The State Board shall have the power to
make declaratory rulings. A declaratory ruling
means the State Board's determination of the
validity of a specific rule or whether a specific
statute, rule or order applies to a given set of
facts. All requests for declaratory rulings shall be
by written petition and shall be submitted to:

System President

Department of Community Colleges

200 West Jones Street

Raleigh, NC 27603-1337.

(b) Every request for a declaratory ruling must
include the following information:

the name and address of the petitioner;
the statute or rule to which the question
relates;

a concise statement of the manner in
which the petitioner is aggrieved by the
rule or statute or its potential applica-
tion to him; and

the consequences of a failure to issue a
declaratory ruling.

(c) Whenever the State Board believes for good
cause that the issuance of a declaratory ruling is
undesirable, it shall refuse to issue one. Where a
declaratory ruling is deemed inappropriate, the
System President or designee shall notify in writ-
ing the petitioner, stating reasons for the denial of
a declaratory ruling. The State Board may refuse
to consider the validity of a rule:

(I) unless the petitioner shows that the

13}

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1534

PROPOSED RULES

Lil

circumstances are so changed since

adoption of the rule that such a ruling

would be warranted;

unless the rulemaking record evidences

a failure by the agency to consider

specified relevant factors:

unless circumstances stated in the re-

quest or othervsise known to the agency
show that a contested case hearing
would presently be a ppropriate.

(d) Where a declaratory ruling js deemed appro-
priate, the State Board shall issue the ruling within
60 days of the receipt of the petition.

(e) A declarator\' ruling procedure may consist
of written submissions, oral hearings, or such
other procedure as may be deemed appropriate, in
the discretion of the State Board or its designee in
the particular case.

(f) The System President or his designee may
issue notice to persons who might be affected by
the ruling that written comments ma\' be submitted
or oral presentations recei\'ed at a scheduled
hearing.

(g) A record of aU declarator^- ruling proceed-
ings shall be maintained by the System President
and shall be available for public inspection during
regular business hours. This record shall contain:

m
m

ill
ill

the original request:

the reason(s) for refusing to issue a

ruling when the request is denied:

all written memoranda and information

submitted:

an\' written minutes or audio tape or

other record of the oral hearing: and

a statement of the ruling when the

request is granted.

Staiutun- Authorin- G.S. 150B-4.

iS otice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Department of
Coimnunity Colleges intends to adopt rules cited as
23 NCAC 2B .0104: 2C .0209 - .0210: amend
rules cited as 23 NCAC 2B .0205. .0301 - .0302:
2C .0101 - .0102. .0105 - .0107. .0202. .0204,
.0207- .0208. .0301. .0304 - .0305, .0403. .0501

- .0502. .0603 - .0604. .0701 - .0703: 2D .0101.
.0103 - .0104. .0109. .0201 - .0205. .0301. .0303

- .0305. .0307. .0309 - .0314. .0318 - .0321.
.0323 - .0326. .0601 - .0602: 2E .0101 - .0102.
.0104. .0201. .0203. .0305. .0401 - .0403. .0501.
.0602: and repeal rules cited as 23 NCAC 2A

.0001 -.0005: 2B .0101 - .0103. .0204, .0303: 2C
.0103. .0205 - .0206, .0302 - .0303. .0401 -
.0402, .0704 - .0705: 2D .0105. .0302. .0306.
.0317. .0328. .0603 - .0604: 2E .0103. .0202.
.0301 - .0304. .0502. .0603.

I he proposed effective date of this action is July
1. 1993.

I he public hearing will be conducted at 10:30
a.m. on November 18. 1992 at the Auditorium of
the Highway Building, 11 South Wilmington Street,
Raleigh, NC 27601 - 1494.

IXeason for Proposed Action:

23 NCAC 2A .0001 - .0005: 28 .0101 - .0103.
.0204. .0303: 2C .0103. .0205 - .0206. .0302 -
.0303, .0401 - .0402. .0704 - .0705: 2D .0105.
.0302, .0306, .0317. .0328. .0603 - .0604: 2E
.0103. .0202, .0301 - .0304. .0502, .0603 - To
eliminate rules that are no longer relevant to
administration of the Communit}- College System.

23 NCAC 2B .0104 - To set forth the mission of
the Conununity College System and how the mis-
sion is carried out.

23 NCAC 2B .0205. .0301 - .0302 - To clarify the
Colleges ' planning process and to standardize and
update language.

23 NCAC 2C .0101 -.0102. .0105 - .0107. .0202.
0204, .0207 - .0208. .0301. .0304- .0305. .0403.
.0501 - .0502, .0603 - .0604, .0701 - .0703 - To
standardize and update language, to eliminate
obsolete provisions, and to incorporate the cooper-
ative agreement provision in the rule.

23 NCAC 2C .0209 - .0270 - To require each
board of trustees to evaluate the college president
and to adopt and publish designated personnel
policies.

23 NCAC 2D .0101. .0103 - .0104. .0109 - To
clarify the pay schedule for college presidents, to
standardize and update language, and to make
military leave benefits for comtyumity college
system personnel consistent with benefits available
to state employees.

23 NCAC 2D .0201 - .0205 - To standardize and
update language, to clarify tuition and fee costs.

1535

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PROPOSED RULES

and to clarify the refund policy.

23 NCAC 2D .0301, .0303 - .0305, .0307. .0309
- .0314, .0318 - .0321, .0323 - .0324 - To stan-
dardize and update language, to clarify budget
requests and distribution of funds by the colleges,
to regulate expenditure of state finds for designat-
ed items by the colleges, to regulate acquisition of
automate data processing resources, to regulate
voluntary payroll deductions by colleges, and to
clarify reporting of student hours.

23 NCAC 2D .0325 - .0326 - To incorporate
requirements mandated by the General Assembly
with respect to in-plant training programs , courses
taught in sheltered workshops and ADAP Centers.

23 NCAC 2D .0601 - .0602 - To set forth the
funding requests and finding allocation process for
Community Colleges and the process for approving
college sites and building plans by the State Board
of Community Colleges.

23 NCAC 2E .0101 - .0102, .0104, .0201. .0203.
.0305, .0401, .0403, .0501 - To clarify the classi-
fication system and approval process for programs ,
to regulate awarding of credentials , and to update
and standardize the language, provision of training
to industry, captive or co-opted groups, and
military bases and articulation with the other
educational systems.

23 NCAC 2E .0402. .0502 - To incorporate re-
quirements mandated by the General Assembly
with respect to in-plant training programs and
Huskins Bill programs.

i^onvnent Procedures: Interested persons may
present statements either orally or in writing at the
public hearing, or in writing delivered or mailed,
addressed to: Clay Tee Mines or Bill Cole. De-
partment of Community Colleges, 200 West Jones
Street. Raleigh. NC 27603. Written comments
must be received by 5:00 p.m. on December 2,
1992.

tliditor's Note: The following rules have been
filed as a temporary amendments effective Octo-
ber 15, 1992 for a period of 180 days to expire
on April 15, 1993: 23 NCAC 2D .0325 - .0326;
2E .0402 and .0602.

SUBCHAPTER 2A - RULES OF
ORGANIZATION

.0001 RESPONSIBILITIES OF THE

DEPARTMEIVT OF COMMUNITY
COLLEGES

The Department of Community Colleges' rcspon
sibiiitics include but arc not limited to the follow

{\^ stat e level administration and leader s hip

of the Community College System;

{33 coordination of statewide planning for the

Community College System with other

(§>-

W-

public and private educational sectors;

provision of assistance for institutional
planning;

(4) development of recommended changes in

and additions to state board policies for
the Community College System, — with
assistance from institutions;
consulting with the Community College

Advi s ory Council in regard to advising
the s tate board on matters relating to
personnel, curricula, fmance, and articu
lation, among others;

{€) development of budget requests based on

assessments of local and s tate needs;

f?3 assistance to local institutions in develop

curriculum guideline s and instruction

al materials;

provision of information about the Com ■

munity College Sy s tem to the public;
(9^ assistance to institutions in dealing with

federal , — state — and — other agencies — and

organizations;
iVd) assi s tance to institutions in the develop

ment. revision, and termination of curric

ulum and extension and other educational

program s to mak e available eomprehen

swe — postsccondary — education — te — adult

citizens;
{4-4-) assistance to institutions in capital — ifH-

provemcnt — and — equipment — and — media

processing and inventory;
{4-3) assistance — 1« — local — in s titution s — ifi — the

development of appropriate student s cr

vices;

provision of other assistance a s requested

by local institutions.

Statutory Authority G.S. 115D-1: 115D-3; 115D-4;
115D-5.

CHAPTER 2 - COMMUNITY COLLEGES

.0002 ORGANIZATION

The Department of Community Colleges fulfills

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NORTH CAROLINA REGISTER

November 2, 1992

1536

PROPOSED RULES

its — admini s trative — responsibilities — through — the
following organizational structure: — Office of the
State President, an Executive Vice Pre s ident with
Assistants — fof — Board — Affairs. — Policy — Affairs.

Go\ernmental Affair s . Legal Affairs

id Publi

Affairs, and four Dix isions — Finance. Re s earch and
Planning. — Programs. — Adult — and — Continuing
Education — each headed by a V i ce President.

Statiaon- Authority G.S. 1150-3: I15D-14:
II5D-15: I15D-20.

.0003 AUTHORITY

for the

(a) The State Board derive s it s authority Tor
Community College System from G.S. I I5D and
within that authority is granted power to organize
and operate a department to provid e s tate level
administration of the Community College Sy s tem.

fbs — Each institution within the system operates
under the direction of a board of trustees, a corpo
rate body, which derives its authority from G.S.
1 15D 12 through 1 15D 25 and rules of the State
Board.

fe^ — The s tate president is directed to carry out
the rules of the State Board as affecting the depart
ments and in s titutions.

(d) All power and authority vested by law in the
State Board which relates to the internal adminis

tration. regulation, and gos'crnance of any indisid
ual in s titution of the Community College Sy s tem
are hereby delegated to the board of trustees of
such institution with the following exceptions and
reservations:

-4

;abk

■H-) Power or authority that is non oeiegaDie

a s a matter of law or because of the
nature of it s exercise is not delegated;

(3V

Powc

eef — &f — authority — m — matters — e-
s y s tcmwidc or inter institutional impor
tance are re s erved for determination by
the State Board if the s tate board ehoo s
es to make such determination:

The State Board

ie siaie poara reserves the right to
rescind any power or authority as it
deem s nece ss ary: and

f4^ More specifically. — the governing au

thority of the State Board, which s uper
s ede s local — authority, peilain s to the
assurance of:
{A) — fiscal accountability.
{Sf) — program accountability, and
fC-) — satisfaction of state priorities.

Stcitiitan Authoritx G.S. 115D-3: 115D-5.

.0004 STATE PRESIDENT: FISCAL

DIRECTION AND BUDGET
MANAGEMENT

The State President of the Department of Com
munity Colleges, subject to approval of the State
Board shall have responsibility for fiscal direction
and budgetary management as follov»'s:

f4-) admini s tration of funds appropriated for

s tate level operation and maintenance of
the Department of Community Colleges;

Hj development of biennial budget requests

for both state and institution level opera
tion s ba s ed on the assessment of need s
for presentation to the State Board;

0j represent the State Board in justif;y'ing

and explaining the biennial budget to the
Department of Administration and the
General Assembly;

keep all other agencies, in s titutions, and
the general public, including the pres s ,
informed about any matters that may b e
of interest to them which relate to or
affect the Community College System
and its institutions;

f44

(4f-

and

review and recommend the approval or
di s approval in whole or in part to the
State Board the annual budget s s ubmitted
by the respective board s of trustees of the
in s titution s — m — compliance — w+th — G.S.
1 15D 5 4 to as s ure that a proper balance
is maintained between the various pro
grams, instructional services, and admin
istration;

t'hieh

approval — of tran s fer s . — which — may
requested by the institutions, within the
annual budgets based on study and deter
mination that such transfers will improve
the operation of the institution s and are
not restricted by General As s embly or
s tate board policy;

f^ periodically review budget s

tt+i-

institu

tional president s to con s ider budget ad
justment s and to recomm e nd funds which
may be reverted for reallocation to other
institutions found to have a greater need;

review, on a continuing ba

*«T

■#H:

=Hial

budget s with the respective institutions
f&f — determining — program — offerings — m
eomplianee with polic i e s and regulations
of the State Board;

recommend to the board the allotment of
funds for the operation of the Community
College and Technical — In s titute System
such as but not restricted to the follow

tftfr

t*) Regular funding of formulas adopted;

1537

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NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

ihj Formula funding reserve (current opcr

ations):

^ej Formula funding reserve (equipment);

(d) New industry;

(e) Human resources development;

^ Visiting artist program;

(g) Comprehensive Employment Training

Act (CETA);
ih) Additional allotments for institutional

due s and repair s to equipment and other

items having standing approval of the

State Board;

fi^ Construction allotment;

^jj Various federal grants;

fk) Adult basic education;

^ Vocational education:

within sixty days after adoption of the emergency
rule.

ft) handicapped,

fit) — disadvantaged,
ftif) — special needs,
fjv) — research ;

f+O) recommend to the state board changes or

modifications in formula s as needed.

Sratitron' Aurhorit)' G.S. 1150-3: 1150-4; 1150-5.

.0005 RULEMAKING

(a) Prior to recommending rulemaJcing, the State
President shall cause a con s ultative proce ss to talce
plac e — involving, a s a minimum, the executive
committee s of the Trustees' Association and the
Presidents' — Association — ©f — em — advisory — group
nominated by these Associations in order to assure
reliable, equitable, auditable, fair and effective
proposals.

ffe) — The State President shall recommend pro
posed changes at a regular or special meeting of
the State Board as information.

fe) The State — President shall circulate such

j cd changes to the Board Chair

-and

proposea cnangcs to tne Boara cnairmen
Pre s ident s of the in s titution s , allowing a minimum
of 30 days for comment. — He may, at his discre
tion. schedule conference s or workshops or hear

add it

ion to s ucr

fid

ing s to — receive comment, — m-
circulation.

(4) — The State President shall then recomme
the propo s ed rule changes to the State Board, with
full information as to comments received from the
in s titution s , at a regular or s pecial meeting.

fe) — The State Board may approve, di s approve,
revise or postpone the proposed rule.

ff) — The State Board may take immediate action
in an emergency situation, such emergency s hall
be certified by two thirds of the member s pre s ent
and voting, provided, however, that the process of
involvement (b) through (e) of thi s Rule i s initiated

sheW

fg) — Nothing in this rule revision process sti
super s ede the requirements of the Administrative
Procedure Act, as revised.

Statutory Authority G.S. 115D-3; 1150-5.

SUBCHAPTER 2B - THE COMMUNITY
COLLEGE SYSTEM

SECTION .0100 - GENERAL PROVISIONS

.0101 POLICY CONCEPT

(a) The fundamental concept of the Community
College System of North Carolina i s ba s ed on the
policy that all — institutions shall — have an — "open
door."

fte) — The institutions of the Community College
System shall as needed provide comprehen s ive
learning — opportunitie s — for the — people — of their
communities. — This education talces place in the
normal — environment — of people — living — m — their
communities and throughout the different ages and
conditions of life of the people of the community.

fe) — The Community College System in North
Carolina — shall — serve — primarily — those — persons
beyond the normal high s chool age, 18 y e ar s old
or older, whether they arc high school graduates
or not, by offering appropriate, economical and
convenient learning opportunities.

f4) — These opportunities range, depending on
individual needs and previou s educational achiev e
mcnt, from the first grade level through the s econd
year of college, including occupational, and gencr
al adult training to all of suitable age who wi s h to
learn and can profit from the instruction provided.

Statutory Authority G.S. 1150-1.

.0102 OBJECTIVES

The purpose of the Community College System
is to extend universal — educational opportunitie s
beyond the public school s y s tem. — The objectives
of this stated purpo s e are:

fH to provide expanded educational opportu

nitie s from the first grade through high
school and beyond high s chool for young
people and adults who would not other
wise continue their education;

f3) to provide relatively inexpensive, nearby

educational opportunities for high s chool
graduates, — non high — s chool — graduate s ,
and adult s ;
f^) 1© — provide college — tran s fer — program s .

7:lfi

NORTH CAROLINA REGISTER

November 2, 1992

1538

PROPOSED RULES

consiating of the first two year s of regu

lar college s tudie s :
(4j to provide technician programs, prcpar

ing students for job s in indu s try', agrieul

lure, business, government, and service

oeeupulions;
iSj to provide vocational programs preparing

students for iob :

ig var^'mg level s

f^H-

JOBS reqi
of ability and skill:

to provide occupational education pro
gram s — for employed — adult s — Vrh« — need
training or re training, or who can other
v\'isc profit from the program:
-te — provide — courses that — wtH — meet — ttw
general — adult — and — community' — service
need s of the peop l e of the community.

Sratuton- Aurlwrity G.S. I15D-1: 1150-2.

.0103 LEGAL BASIS AND ALTHORITi

North Carolina General Statutes. Chapter 115D.
as amended, proxides the legal framework for the
establishment. — organization. — em4 — operation — ef
community colleges and technical institutes.

Shituton- Amhorhy G.S. 115D-1 thrauiih !15D-81.

.0104 >nSSION OF THE COMMLTVITV'
COLLEGE SYSTEM

The North Carolina Community College System
is a statev\'ide organization of public two-year
postsecondapv' educational colleges with an
open-door admissions policy. Its mission is to
pros'ide adults ]n North Carolina with quality and
consenient learning opportunities consistent with
identified student and community needs. These
opportunities are accessible to aU adults regardless
of age, sex, socio-economic status, ethnic origin-
race, religion, or disability. Educational and
training programs are designed to enhance the
personal, social, and economic potential of the
indi\ idual and to produce measurable benefits to
the state. The system fulfills this mission by
providing:

( 1 ) Vocational programs and courses for
students desiring to prepare for skilled
trades or to upgrade their job skills:

(2 1 Technical programs and courses that meet
the career needs of indi\iduals:

(3) Transferable programs and courses for
students desiring to attend a senior col-
lege or uni\ersitv:

(4) Special occupational training and upgrad-
mg programs and ser\ices for businesses.
industries, and agencies:

(5) Programs and courses in adult basic
education, high school completion, and
continuing education:

(6) Counseling, career guidance, job place-
ment services, and other programs essen-
tial to developing the potential of indi\'id-
ual students:

(7) Programs and services to enrich the
quality of community life:

(8) Effective and cooperative relationships
with the schools, colleges, universities,
government agencies, and employers
across the state: and

(9) Sound management practices and system-
atic planning to allocate the resources
required to achieve the stated objectives
of the North Carolina Community Col-
lege System.

Statutory Authority
115D-5: 115D-8.

G.S. 115D-1: 115D-4.1;

SECTION .0200 - THE NORTH CAROLEVA
COMMUNiri COLLEGE SYSTEM

.0204 STATE PLANNING

TTie Department shall develop a long range plan.
The plan s hall take into account the current and
future need s of the system, and clarify priorities
e ss ential to carrv'ing out the purpo s e s of the sys
tejfh — Th e plan s hall b e reviewed periodically to
as s ure its continued validity.

Statutory^ Authority G.S. 115D-1: 115D-3: 115D-5.

.0205 COLLEGE PLANNING

Each member institution college of the Commu-
nity College System shall operate in accordance
with a long range plan. maintain an ongoing
planning process which provides for development
of a college plan. As a minimum, the plan college
plans shall address program and facility needs^
shall include the college's mission, goals and
objectives, consistent with the mission of the
System and with the State Board's priorities: and
shall provide for evaluation of results, an^ Plans
shall be submitted to the Department in accordance
with its procedures. The plan shall be rex'icwcd
periodically for the purpose of nioicing rexisions to
assure it s continued validity.

Statutory Authority G.S. 115D-1: 1 15D-3: 1 15D-5.

SECTION .0300 - STATE PRESIDENT:
ALTHORIZATIONS

1539

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NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

.0301 PROVISION OF INFORMATION
TO THE DEPT OF COMMUNITY
COLLEGES

The trustees and the president of each institut i on
college are responsible for seeing that scheduled
periodic official reports about the institution
college and any special reports are timely submit-
ted and in the a timely manner and in the format
prescribed by the State System President.

Statutory Authority G.S. 1150-5.

.0302 NO-COST EXTENSION OF
CONTRACTS

The State System President is authorized to
extend the completion date, at no additional cost,
of any contract which has received prior approval
of the State Board when circumstances warrant,
provided that no applicable laws or regulations
prohibit such an extension. Such an extension
shall not exceed six months beyond the completion
date approved by the State Board.

Statutory Authority G.S. 115D-5.

.0303 ADMINISTRATIVE MEMORANDA

The State Pre s ident i s authorized by the State
Board to issue administrative memoranda specify
ing the manner in which technical institutes and
community colleges, as well as staff members of
the — Department — e# — Community — Colleges, — are
required to carry out polic i es of the state board.

Statutory Authority G.S. 115D-3; 115D-5.

SUBCHAPTER 2C - INSTITUTIONS:
ORGANIZATION AND OPERATIONS

SECTION .0100 - TRUSTEES AND
INSTITUTIONS

.0101 AUTHORIZATION

The boards of trustees of community colleges
and technical institutes as bodies corporate are
authorized to do all things necessary and proper to
organize and operate in s titution s colleges consis-
tent with G.S. 115D and policies of the State
Board .

Statutory Authority G.S. 1150-5; 1150-14.

.0102 NAME

Trustees of all institutions colleges hereafter
named or renamed as defined under 1 15D 2(7)

G.S. I15D shall use the appropriate full term,
"Community College," — "Technical — In s titute" or
"Technical College" Community College, in the
name given the institution, college. "Technical
Institute" and "Technical College" arc con s idered
synonymous terms. — Local Boards of Trustees,
with concurrence of the respective county commis
s ioncrs, may elect to use "Technical College" in
lieu of "Technical Institute." Other than the three
term s term mentioned in this Rule, the Trustees
have full authority. Changes in existing names
shall be forwarded to the State Board specifying
the specific date of the change prior to the effec-
tive date. Conformity shall be required before any
state funds are authorized.

Statutory Authority G.S. 1150-2: 1150-5.

.0103 ROLE

(a^ — The Community College System was c s tab
lishcd to provide additional educational opportuni
tie s to the citizens of North — Carolina, aiming
primarily at the po s t high s chool level, and to fill
an educational opportunity gap between the high
schools and the four year colleges and the univer
sity system. — The filling of thi s gap require s open
door admi ss ion of both high school graduates and
of others who may not be high school graduates.
The provision of educational opportunity for this
broad range of student ability and need s require s
a broad range of curriculum and continuing educa
tion offerings.

(b^ The carrying out of this re s pon s ibility

as s igns a unique role to the institutions in the
Community College System, which ro l e i s fundu
mentally different from the selective role tradition

ally a ss igned to four year colleges and universities.
Becau s e of thi s , for a community college to aspire
to become a four year college would not repre s ent
normal grov»1h, but would de s troy the community
college role and replace it with an entirely differ
ent type of in s titution.

fe) — No community college or technical institute
shall attempt to become a four year institution.

Statutory Authority G.S. 1150-1; 1150-5.

.0105 ESTABLISHING COLLEGES

(a) General Policy. In authorizing the establish-
ment of a new institution college in a county in
which no in s titution college of the Community
College — System community college system is
currently located, an in s titution a college will be
approved initially as a community college.

(fe) — New In s titutions. An application for a new

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1540

PROPOSED RULES

area to be served must come from the county ef
citv board(s) of education or the county commis-
sioners in the proposed administrati\e area. The
application shall be sent to the State Board which
may direct the Department to cooperate with the
applicants in making a sur\ey to determine the
following: need for the establishment of a new,
college.

t4-) Do the educational noods of the area

justify' — the — educational — services — pf©-

po s ed?
t3-) Gsfl — i^ — existing — public — arid — prixate

post secondan,' institutions in the area

moot the needs domonstratod'!'

ff^

f+++-

unmet educational — needs exist that
could be met b\' the proposed institu
tion. will the projected student enroll
ment justifx' the propo s ed in s titution?
.A s Q standard, the projected enrollment
should bo a minimum of 4 00 full time
equi\'alcnt student s in curriculum pro
grams within three )'cars after establi s h
ment.

f4-> Can adequate local current and capital

expen se funds be supplied? As a stan
dard. the level of local current operat
ing fund support should be equal to the
existing median s upport for the institu
tions in the community college system.

iS-) Will the local public school tax support

bo affected adxersely by the local sup

port required for the proposed institu

1 1 o n .

Do the boards of commissioners and

board s of education in the area support

the application?

■Are the facilities proposed to house the

new in s titution adequate

Doe s the application Fit the policy of
reasonable — geographic — distribution — ift
order to meet s tatewide needs? — A s a
s tandard. — no new institution shall be
established within 25 miles of an exist
tftg — in s titution v\ithin the community
college — s y s tem. — except — where — urban
population density or natural barriers
become oxorriding considerations.

Will adequate state funds become a\ai
able to s upport the propo s ed new inst
tution?

-G-

an the immediate — needs ot an area
be s t be s erxed by an extension unit
operating under contract with an exist
ing in s titution'?
■A statement of anticipated dcscgrega

tion impact will be required.
f45) When the survey is completed, the
Department will report to the State
Board and make its recommendations.
recommendation(s). A local delegation
may appear if desired. The State Board
shall make its recommendation recom-
mendation(s) for the establishment of a
new institution college to the General
Assembly, including a request for
additional funds if needed.

Statutory Authority G.S.
1I5D-31 through 115D-36.

115D-4: 115D-5:

.0106 ESTABLISHING NnLIT.\RY
SERVICE AREAS

Educational programs offered by in s titutions
colleges of the community college system of North
Carolina on all military' installations will be con-
ducted by the home institution, college. The
home in s titution college is defined as that institu
ttoft college located in the administrative area in
which the militar\' installation is based. Tfie home
in s titution s college by written contractual agree-
ment may contract with other institution s another
college vx'ithin the Community College System for
assistance in prox iding community college system
to provide any additional educational services
which may be required by the military installation
located in the home institution's college's area.
Priority will be given to adjacent institution s
colleges of the military' installation to be served.

Statutory Authority G.S. 115D-5.

.0107 EST.\BLISHESG SERMCE
AREAS FOR COLLEGES

The State Board shall assign serxice areas to
in s titution s colleges for prox'iding education and
training serxices. The initial assignment of serxice
areas to institutions colleges shall take into account
the past and present patterns of providing services,
including existing agreements between institutions.
colleges. The State Board may reassign a service
area upon the recommendation of the State System
President. The recommendation shall be based
upon an analysis of the service areas inx'olved,
including consultation x\ith the presidents of the
institutions colleges and the county commissioners
of the countx(ies) that are affected.

An institution A college may offer education and
training in an area assigned to another in s titution
college only by xxritten agreement between the
in s titutions, colleges. This written agreement is

1541

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PROPOSED RULES

to be filed with the System President. A board of
trustees may delegate to its president the authority
to enter into short-term written agreements.
Agreements beyond one year in length shall be
approved by the boards of trustees of the inatitu
tions colleges involved and filed with the State
System President.

Statutory Authority G.S. 115D-5.

SECTION .0200 - PERSONNEL

.0202 FACULTY

(a) General

f-1-) In order to give guidance to higher

education institutions preparing teachers
for the — institutions, — the — State — Board
adopts the following general policies:
(A) — Formal certification of teachers by the

Department will not be required.
fB) — Each higher education institution will
develop the professional and academic
education requirements it finds ncces
sary in order to assure de s ired faculty
characteristics — without any specific
credit hour requirements prescribed
by the State Board.

(1) (3^ — In s titutions Colleges shall employ
faculty members so as to meet Southern
Association of Colleges and Schools
Schools' standards.

(2) {i^ — In s titution s Colleges shall deter-
mine appropriate teaching and
non-teaching loads for faculty and for
technical assistants to the faculty so as
to meet Southern Association of Colleg-
es and Schools Schools' standards.

(b) Instructors for Fire Service Training (Exten
sion). Extension Emergency Services Training.
It is the policy of the State Board that All instruc-
tors in the fire service area of Emergency Services
Training program must be trained to teach adults
and must meet qualifications be qualified as estab-
lished by the Department in consultation with the
Fire Service Training State Advisory Committee.
Procedures for meeting rceommended qualifica
tion s — shall — be — instituted — and — regulated — by — the
Department — Fwe — Service — Training — Division.
Procedures shall include directions to fire service
in s tructor s , in s tructor candidates, state director of
fire service training, fire s ervice area coordinator s .
and — teed — institution s . respective emergency
services state-level certifying agency. Emergency
services training means training delivered to
personnel in law enforcement, fire and rescue

services, and emergency medical services agen-
cies.

Statutory Authority G.S. 115D-1; 115D-5.

.0204 EMPLOYMENT OF RELATIVES

It is the policy of the State Board that present
and prospective employees shall be evaluated on
the basis of individual merit, without respect to
race. sex. religion, national origin, or any other
factor s not involving professional qualifications
and performance. — In accordance with the policy
principle, the following restrictions arc adopted.
To avoid the possibility of favoritism based on
family relationships, for all employees in the
system:

(1) An institution A college shall not employ
two or more persons concurrently who
are closely related by blood or marriage
in positions which would result in one
person of such family relationship super-
vising another closely related person or
having a substantial influence over em-
ployment, salary or wages, or other
management or personnel actions pertain-
ing to the close relative.

(2) "Closely related" is defined to mean
mother, father, brother, sister, son.
daughter, father-in-law, mother-in-law,
son-in-law. daughter-in-law. sister-in-law.
brother-in-law. grandmother, grandfather,
grandson, granddaughter, uncle, aunt,
nephew, niece, husband, wife, first cous
tftr step-parent, step-child, step-brother,
step-sister, guardian or ward.

(3) With respect to the concurrent service of
closely related persons within the same
academic department or other comparable
institutional college subdivision of em-
ployment, neither relative shall be per-
mitted, either individually or as a mem-
ber of a committee, to participate in the
evaluation of the other relative.

{A) The provisions of this policy shall be

prospective only, with reference to ap
pointments made after the adoption date
of this policy.

Statutory Authority G.S. 115D-5: 115D-20.

.0205 EMPLOYMENT AND DISMISSAL
POLICIES

The respective boards of trustee s of the technical
in s titute s — and — community — colleges — shall — adopt
employment and dismissal policies and procedures.

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PROPOSED RULES

These — employment — afld — dismissal — polieies — aftd
proeedure s vx'ill eomply with existing state and
federal iavKs and vxill be tiled with the s tate pre s i
dent by April 1. 1978.

Suituton Aitrhoht} G.S. 115D-5: 115D-20.

.0206 STAFF DEVELOPMENT POLICY

Eaeh board of trustees shall adopt a poliey on
staff development for all employees of the institu
lion .

Stafiiiory Authority G.S. 115D-5: 115D-20.

.0207 PURCHASE/CO.MPLTER
HARDWARE: SYSTEM
SOFTWARE/STATE CONTRACT

fa) The State Board of Community Colleges
authorizes the following certain classes of full-time
employees to purchase microcomputers, related
peripheral equipment, and system software under
state contract at state contract prices in accordance
with procedures set forth in the Department's
Accounting Procedures Manual.
t4-) classroom instructors;

other — profe ss ional — personnel — tfl — the
department and institution s , including

supers isors an '

4-a4

mmi

s trator s , engaged

;, engage<-

in delivering or supervising classroom
instruction, or engaged in curriculum
dc\'clopment:

{ij other per s onnel in the department and

the local institutions engaged in deliver
ing serxices through computer related
equipment.
fb-t — In addition to any proeedures or require
mcnts of the Department of Administration or the
State — Budget — Office. — ftfi — institutional — employee
included within a class defined in Paragraph (a) of
thi s Rule vx ' ho desires to purchase computer equip
ment or s y s tem s oftware under state contract at
state contract price s s hall submit a request to his
president. This request shall contain a certification
by the employee that:

{ij he i s a member of one of the cla ss e s of

employees defined in Paragraph (a) of
this Rule;

f3+-

he intends to continue employment wi
the community college system;

(^4 fh^ — computer — equipment — ef — s ystem

software to bo purchased b\' the em

ployee

jt-th^

y'cc will a ss i s i ine emplovee in per
forming — Iw* — a ss igned — dutie s — &f — vrt44
enable — the employee to improxe the
performance of his assigned duties;

f44 the — computer — equipment — &f — system

software to be purchased will not be
resold for at least three years from the
date of purcha s e; and

f^) the — computer equipment — te — be — pw=-

cha s ed will not be used primarily for
the employee's private benefit.
■fe) — Upon receipt of a request from an employee
the president shall determine whether the informa
tion provided therein by the employee is accurate.
If the president is satisfied that the information
contained in the request i s accurate the president,
in accordance with any procedures or requirements
established by the Department of Administration or
State Budget Office, shall initiate the process for
the purchase of the reque s ted computer equipment
or system software. A reque s t which is incomp l ete
or which contains inaccurate information may not
be approved by the employee's president.

(4) Each employee shall be limited to one

approved purcha s e order under the application of
this Rule per three year period from the date of
fir s t purcha s e.

fe-) — All reque s t s for the purchase of computer
equipment or s y s tem s oftware shall be submitted
on a form prepared by the Department of Commu ■
nity College s which incorporate s the requirements
of Subparagraph (b) (2) of thi s Rule.

(f) In addition to anv procedures or requirements
of the Department of Admini s tration or the State
Budget — Office, — professional — personnel — tn — the
department included in Subparagraph (a) (2) and
(3) of this Rule who de s ire to purchase computer
e quipm e nt or system s oftware under state contract
ihall follow the

at s tate contract price
prescribed by the department.

proc

Statutory Authority G.S. 115D-5; 143-58.1(b).

.0208 POLITICAL ACTIVITIES OF
EMPLO\"EES

(a) As an individual, each emplovee of the
community college system retains all rights and
obligations of citizenship provided in the Constitu-
tion and laws of North Carolina and the Constitu-
tion and laws of the United States. Therefore, the
State Board of Community Colleges encourages
employees of the system to exercise their rights
and obligations of citizenship.

(b) f-H Each local board of trustees shall devel-
op a policy on the political acti\'ities of its employ-
ees, except for the president, that meets the fol-
lowing criteria and submit that policy to the
Department of Community College s System Presi-
dent to determine if the policy meets these criteria:

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PROPOSED RULES

(1) fa) Any employee Employees who

decides decide to run for a public office
offices shall notify the board of trustees
through the president of his intention
their intentions to run and certify that
he they will not campaign or otherwise
engage in political activities during his
their regular work hours or involve the
college in hts their political activities.

(2) fh) Any employee, who is elected to a
part-time public office, shall certify
through the president to the board of
trustees that his the office will not
interfere with his carrying out the du-
ties of his the position with the college,
or request leave.

(3) (e) Any employee, who is elected or
appointed to a full-time public office or
the General Assembly, shall be required
to take a leave of absence without pay
upon assuming that office. The length
of the leave of absence shall be deter-
mined by the local board of trustees.

(4) (4) Any employee who becomes a
candidate for public office shall be
prohibited from soliciting support dur-
ing his regular work hours. The em-
ployee in question is prohibited from
soliciting support on college property
unless otherwise authorized by the local
board of trustees.

(1) fa^ Any college president, who decides
to run for public office, shall notify the
local board of trustees of his the inten-
tion to run and certify that he will not
campaign or otherwise engage in no
campaigning or political activities will
be engaged in during his regular work
hours or involve and that the college
will not be involved in his the
president's political activities.

(2) fb) Any college president, who is
elected to a part-time public office,
shall certify to the local board of trust-
ees that his the office will not interfere
with his carrying out the duties of his
position with the college presidency , or
request leave.

(3) (e) Any college president, who is
elected or appointed to a full-time
public office or to the General Assem-
bly, shall be required to take a leave of
absence without pay upon assuming that
office. The length of the leave of

absence shall be determined by the
local board of trustees.

(4) (^ Any college president, who is a
candidate for public office, is prohibited
from soliciting support during his regu-
lar work hours. The president in ques-
tion is prohibited from soliciting sup-
port on college property unless other-
wise authorized by the local board of
trustees. The authorization must be on
a case^by^case basis.

(5) (e) The local board of trustees shall
notify the state board if the college
president should become a candidate for
public office or if the college president
is elected or appointed to a public
office.

(d) {;¥) Definitions as used in this Rule.

(1) fa) Public office means any national,
state or local governmental position of
public trust and responsibility, whether
elective or appointive, which is created
or prescribed or recognized by constitu-
tion, statute, or ordinance.

(2) fb) Membership in the General Assem-
bly is a full-time public office under
this Rule.

(4^

-=Rii

Application of this Rule. 1 ne require

mcnts of this Rul e s hall apply proapcc
tivcly only. — No change in the employ
mcnt status of an employee who was an
incumbent in public office on the cffec
tivc date of thi s Rule shall be required
under this Rule for the remainder of that
term of office; provided, however, this
Rule shall not apply to any employee in
the system who was a full time public
officer on the effective date of this Rule.

Statutory Authority G.S. 115D-5; 115D-20.

.0209 EVALUATION OF PRESIDENTS

Each local board of trustees shall evaluate its
president annually and notify the State Board in
writing that the evaluation has been completed by
July 1 of each year. The evaluation instrument
and method shall be selected by the local board .

Statutory Authority G.S. 1150-5; 115D-20.

.0210 LOCAL COLLEGE PERSONNEL
POLICIES

(a) Each local board of trustees shall adopt and
publish personnel policies addressing the following
issues:

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1544

PROPOSED RULES

14)
15]
16]

Adverse weather;
Annual leave (vacation);
Drug and alcohol use;
Civil leave;
Communicable disease;

I8J
19]
(10)

Compensatory leave;
Definitions of the employment catego-
ries and benefits for each:

(A) Full-time permanent,

(B) Part-time permanent.

(D) Part-time temporary;
Disciplinary action addressing suspen-
sion and dismissal;

(12)
(13)

(14)
03]
(16)

Educational leave (reference 23 NCAC
2D .0103);

Employee evaluation process;
Employee grievance procedures;
Employee personnel file;
Hiring procedures (written and describ-
ing procedures used for employment of
both full- and part-time employees);
Leave transfer;
Leave without pay;

Longevity pay plan (reference 23
NCAC 2D .0109);

Military leave (reference 23 NCAC 2D
.0104);

Nepotism (reference 23 NCAC 2C
.0204);

Non-reappointment;
Other employee benefits;
Political activities of employees (refer-
ence 23 NCAC 2C .0208);
Professional development;
Reduction in force;

Salary' determination methods for fuli-
and part-time employees;
Sexual harassment; and
Tuition exemption ( reference 23 NCAC
2D .0202).

(b) Each local board of trustees shall adopt and
publish sick leave policies consistent with provi-
sions of the State Retirement System.

(c) Each local board of trustees shall submit
copies of these policies, including amendments, to
the System President's Office upon adoption.

Statuton.- Authority G.S. I15D-5: 1150-20.

SECTION .0300 - STUDENTS

.0301 ADMISSION TO COLLEGES

Each institution college shall maintain an
open-door admission policy to all applicants who

07]

(18)

(19)
(20)
(21)

(22)
(23)
(24)

125]
(26)

are high school graduates or who are at least 18
years of age. Student admission and placement
shall be determined by the officials of each institu
tion. college. Admission requirements for an
emancipated minor shall be the same as for an
applicant 18 years old or older.

Statutorx Authority G.S.
115D-20; 7A-717; 7A-726.

115D-1: I15D-5;

.0302 LOW STUDENT TUITION AIVD FEES

The State Board has s ince 1957 supported an
open door admi ss ion policy for s tudents attending
the technical — institutes and community colleges.
Thi s includes freedom from fixed requirement s on
prev i ou s educational achievement levels and also
from tuition and fee charges that would turn away
students because they cannot afford to pay. — hi
following thi s policy, tuition and fee charge s for
students are kept to a minimum so that educational
opportunity can be open for all citizens of North
Carolina 1 8 year s or older who need this opportu
nity. This includes opportunity for adults to malce
up educational — deficiencies — em4 — to s ecure job
training s o that they can mal-;e a better living.

Authority G.S. 115D-1: 115D-5: N. C. Constitu-
tion. Article IX.

.0303 WORK-STUDY PROGRAM UNDER
THE VOCATIONAL EDUCATION
ACT

The State Board

approves the u s e of Part A.
Subpart — 3 — (basic — grant) — Vocational — Education
Fund s to s upport work s tudy program s a s de
scribed in the State Plan for Vocational Education.

Each

in s titution shall determine that portion
their subpart 2 funds which will be u s ed for
work s tudy programs.

Statutory Authority G.S. 115D-5: P.L. 81-874:
P.L. 94-482.

.0304 STUDENT LOAN FUNDS FOR

VOCATIONAL AND TECHNICAL
EDUCATION

Wi — The loan fund shall be held by the State
Board and released by the State President of the

partmcnt ot Community Colleges to meet loan
jommitmcnt s made by the variou s institutions.

fb^ — The Department of Community Colleges
sheH — di ss eminate — information — concerning — the

Student — Loan — Fund to

jhief adr

-afl — ehiet administrative
officers — of technical — in s titute s — and — community
colleges, hereinafter referred to a s in s titution s .

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PROPOSED RULES

The Department of Community Colleges — shall
prepare — news — releases, — brochures, — and — other
publications interpreting the student loan program.

{e) — Applicants for the loans s hall be furnished
copie s of the governing rules — asd — regulations
adopted by this board. — Recipients of loans, by
virtue of having complied with all the requirements
for receiving aid, s hall thereby be acknow l edging
their agreement to abide by the purpose of the
fund and the rules and regulations prescribed by

the board. Each — institution is — responsible for

administering the fund and for making and collect
ing the loans. — Periodically, as determined by the
State President of the Department of Community
Colleges and the State Board, collections on the
loans shall be transmitted to the State Board. The
institution, through a student loan committee, shall
be responsible for the selection of tho s e candidate s
to be recipients of student loan s .

{4) — The State President of the Department of
Community Colleges shall reque s t in s titutions to
furnish — hw — office — wrth — appropriate enrollment
verification that recipients of student loans arc
full time student s , and other necessary reports and
information for proper records and control of total
program .

fe) — The State Board s hall have authority to
revoke any loan if and when it s hould be deter
mined that:

(4-) The information s ubmitted in support o

the application was willfully reported
erroneously or incompletely; or

(3) The student is not pursuing his work

satisfactorily.
(f) — It shall be the responsibility of th e loan
recipients to keep the chief administrative officers
of institutions informed of any change in address,
statu s , or employment.

{g) — Recipient s of student loan s may be granted
financial assistance of not more than three hundred
dollars ($300.00) per academic s chool year. — The
number of loans will be determined by the demand
and the availability of funds.

^ — Recip i ent s of s tudent loan s s hall execute
promissory notes on form s approved by the Attor
ney General. — All student loans shall be evidenced
by s aid note s , approved by and made payable to
the institution granting the loan, which shall bear
interest at the rate of three and one half percent
per annum. — Repayment of such principal together
with accrued interest thereon, shall be made over
a minimum of five year repayment period, com
mencing one year after the maker of the note
ceases to be a full time student in an institution
and ending six year s after such date. Interest shall

accrue — from the — beginning of such — repayment
period. — In the event of the loan recipient's total
and permanent disability or death, the unpaid
indebtedness shall be cancelled. — In the event of
unsatisfactory progress or permanent withdrawal
from the institution, the entire indebtedness shall
become due payable, with intere s t commencing on
that date.
ft^ — Each candidate for a loan must:

{+) be a resident of North Carolina and be

or expect to be a full time student of
the approved institution as defined by
the State — Department of Community
Colleges;

(3^ declare that he is in need of financial

aid to continue his studies as evidenced
by information on furnished forms;

(^^ apply on forms provided by the State

Department of Community Colleges at
the appropriate time;

f^) be approved by the in s titution student

loan committee;

use the proceeds of the loan only for

the payment of tuition and required

fees, institutional equipment, material s ,

and books, board and room, and similar

living expen s es.

fj) — Applications shall be submitted to the chief

administrative officers of institutions on form s

prescribed and supplied by the State President of

the Department of Community Colleges. — Addi

tional forms essential — to the operation of the

Student — Loan Fund may be developed in the

discretion of the State President of the Department

of Community Colleges. — Additional regulations

essential to the administration of the Student Loan

Fund may be developed in the discretion of the

State President of the Department of Community

Colleges and the approval of the State Board.

The Student Loan Fund was established by the
State Board to meet loan commitments by the
various colleges. Administration of this program
shall follow the procedures set forth in the
Department's Accounting Procedures Manual.

Statutory Authority G.S. 115D-1: I15D-5.

,0305 EDUCATION SERVICES FOR
MINORS

(a) The state board shall encourage individuals
to complete high school before seeking admission
to an in s titution, a college.

(b) A minor, 16 years old or older, may be
considered a student with special needs and may be
admitted to an appropriate program at an institu

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1546

PROPOSED RULES

iien a college if the local public or private educa-
tional agency determines that admission to the
program is the best educational option for the
student and the admission of such student to the
program is approved by the institution, college.
This requirement may be waived if the student has
been out of school at least six months and hts the
application is supported by a notarized petition of
his the student's parent, legal guardian, or other
person or agency having legal custody and control.
The petition shall certify the student's residence,
date of birth, date of leaving school, and the
petitioner's legal relationship to the student.

(c) A high school student, 16 years old or older,
based upon policies approved by the local public
or private board of education and board of trust-
ees, may be admitted to appropriate courses^
except adult high school, concurrently under the
following conditions:

(1) Upon recommendation of the chief
administrative school officer and tfee
approval of the president of the institu
tion; college;

(2) Upon approval of the student's program
by the principal of the school and the
president of the institution: college; and

(3) Upon certification by the principal that
the student is taking at least three high
school courses and is making appropri-
ate progress toward graduation.

(d) High school students, taking courses pursu-
ant to Paragraphs (b) and (c) of this Rule, shall not
displace adults but may be admitted any quarter on
a space-available basis to any curriculum or con-
tinuing education course. Once admitted, they
shall be treated the same as all other students.

(e) Local boards of trustees and local school
boards may establish cooperative programs in
areas they serve in order to provide college cours-
es to qualified high school students with college
credits to be awarded to those high school students
on successful completion of the courses, subject to
appro\al by the State Board. Instructions for the
implementation of this Rule are set forth in the
"Manual on Cooperative Programs in North
Carolina High Schools and Community Colleges."

(f) fe-» L'nless specifically authorized by state
la\», . institutions colleges shall not start classes,
offer summer school courses, or offer regular high
school courses for high school students.

(g) i4j — An institution A college may make
available to persons of any age non-credit,
non-remedial, enrichment courses during the
summer quarter. These courses shall be
self-supporting and shall not earn credit toward a

diploma, certificate, or degree at the institution
college or high school.

(h) -fg^ At the request of the director of a
training school having custody of juveniles com-
mitted to the Division of Youth Services, Depart-
ment of Human Resources, an institution a college
may make available to such juveniles any course
offered by that institution college if they meet the
course admission requirements. The Director's
request shall include bis the Director's approval
for each juvenile to enroll in the course. Courses
made available to such juveniles shall follow the
approval process for immured groups as set forth
in 23 NCAC 2E .0403.

Statutory Authority
1150-20.

G.S. 115D-1; 115D-5;

SECTION .0400 - LIBRARIES AND
LEARNING RESOURCES CENTERS

.0401 STANDARDS

Library — and — Icaming — rosourcos — standards — fer
books, furniture, etc., arc included in the equip
mont standards approved by the state board.

Statutory Authority G.S. 1 15D-5.

.0402 CLASSIFICATION SYSTEM

The local board of tru s tees of each institution is
authorized to adopt for the institution' s library
cither the Dewey Decimal Classification System or
the Library of Congress Classification System,
provided, however, that an in s titution changing
from one classification system to the other s hall
ft&t — receive — extra — s tate — fund s to — facilitate — the
changeover.

Statutory Authority- G.S. 115D-5; 115D-20.

.0403 SLUPLUS AND IRREPARABLE

BOOKS AND BOOK-LIKE MEDIA

Books and book like media originally purchased
from state or federal funds, when they are no
longer — desired — by — em — institution — shati — be
de acce s sioned at the institution. — The s e material s

-thf

may be disposed of by the in s titution tnrougn a
local — saie-; — through — donation s — te — non profit,
tax exempt organization s or tax supported agencies
or in s titutions; through public bid sale by the State
Surplus — Property — Agency: — ©f — by — using — other
procedures prescribed by the department. Records
and receipts of each sale shall be maintained for
auditing purpo s es. The disposal of surplus and
irreparable books and book-like media by colleges

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PROPOSED RULES

shall follow procedures set forth in the
Department's Accounting Procedures Manual.

Statutory Authority G.S. 115D-5; 115D-31.

SECTION .0500 - EQUIPMENT

.0501 EQUIPMENT PURCHASES

In order to make the best use of available state
appropriations for the acquisition of equipment, to
assure each institution college of its fair share of
equipment funds, to achieve full utilization of all
idle equipment in the system before similar equip-
ment is purchased for any institution, college, and
to arrange for the most effective administration of
the equipment program, the following policies
criteria are adopted:

(1)

(2)

Equipment (other than purchases from
capital improvement funds), library
books, and book-like materials provided
each institution college are purchased by
funds from the appropriate Budget Code^
16800.

Equipment and library collections for
each institution college will be provided
by their its annual equipment and library
book budgets. which will have funds
identified for equipment and funds identi
ficd for library collections. The funds
allocated each institution college for
equipment and for library collections will
be determined by the Department ef
Community College s using the "equip-
ment budgeting formula" and the "library
book formula" and will be submitted to
the State Board for approval.
The board of trustees and the president
are responsible for managing and admin-
istering the funds provided for equipment
and library collections to ensure that the
institution college has the proper equip-
ment and the library collection needed to
support the authorized curricula and
courses^ that have been authorized for an
institution to offer.
Equipment Fiscal Management

(a) Equipment fiscal management standards

have been established for five program
area s to provide a fiscal management
system to guide institutions in the rcqui
sitioning of equipment.

(fe) The cumulative total amount of equip

ment funds that will be allocated to an
institution will be determined by its
E/FTE size. — That amount is the stan

(3)

dard and i s s hown on the equipment
fund phasing chart. — For example, an
institution in the size cla ga ification of
zero to 163 E/FTE will be allocated a
total of two hundred forty six thou s and
dollars ($2 4 6,000) for equipment over
a period of time. — Twenty percent of
this total amount, or forty nine thou
sand two hundred dollars ($ 4 9,200),
may be expended in the general area;
and this amount is the suggested stan
dard for the general area at the zero to
163 E/FTE s ize level. — Suggested ex -
penditure for the functional area s are:
20 percent for general area, tv.'o percent
for adult education area, 15 percent for
college transfer and general education
area, 60 percent for occupational educa
tion area and three percent for special
education area.
(4) (§) Title to administrative and instruc-
tional equipment purchased with
state-allocated funds is held by the State
Board and will become a part of the
Community College System community
college system equipment inventory^ and
such Such equipment will be eligible for
transfer to other institutions, colleges.

(6) New curriculum program requests to the

General Assembly shall also include, a s
well as current expense fund s needed,
that detailed — s tatement s — of equipment
funds required are available to support
the new educational programs.

Statutory Authority
1150-54.

G.S. 115D-5: 115D-31;

.0502 SURPLUS PROPERTY

The State Board hereby delegates to the local
governing boards of the respective in s titutions
colleges the power to dispose of personal property
to which the governing board boards of the institu
tions colleges hold the legal title, titles as pre-
scribed by law.

Statutory Authority
115D-54.

G.S. 115D-5: 115D-14:

SECTION .0600 - INSTITUTIONAL
EVALUATION

.0603 ACCREDITATION BY THE
SOUTHERN ASSOCIATION

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1548

PROPOSED RULES

The State Board requires all institution s colleges
to seek obtain and maintain regional accreditation
by the Southern Association of Colleges and
Schools^ and to follow the necessary procedures
involved in the reaffirmation of this accreditation.
The State System President, when requested, will
provide assistance to institutions colleges seeking
regional accreditation.

Statutorx Authohtv G. S. 115D-1: 1 15D-3: 1 15D-5.

.0703 EMPLOYMENT OF WOMEN/

MINORITIES IN ADMINISTRATIVE
POSITIONS

The s tate — board State Board encourages an
expanding employment of women and minorities in
administrative positions^ in those instances where
qualified female applicants are available for such
po s ition s .

Statutun- Authoritx G.S. 115D-5:P.L. 88-352.

.0604 CURRICULUM PROGRAM REVIEW

Each college shall monitor the quality and viabil-
ity of each of its curriculum programs. Each
program shall be reviewed at least once every five
years with regard to the achievement of its stated
purpose, quality of instruction, curriculum design,
cost, student outcomes, and contribution to the
overall mission of the college. Summary reports
of these reviews shall be transmitted to the System
President^ of the Community College System.

Statiitorx Authority G.S. II5D-5.

SECTION .0700 - CIVIL RIGHTS

.0701 CIVIL RIGHTS

(a) The state board State Board requires that the
Department and the in s titution s colleges comply
with the provisions of the Civil Rights Act of 1964
and other acts banning discrimination because of
race, national origin, color, religion, sex, handi
eapT disability, age or political affiliation.

(b) Compliance Forms. State Board policy
requires that all in s titution s colleges maintain
up-to-date compliance forms for the 1964 Civil
Rights Act, Section 504 of the Rehabilitation Act
of 1973, and Title IX of the Education Amend-
ments of 1972^ tmd — that — a — copy — of each
in a titution' s current compliance form be filed with
the office of the State Pre s ident.

Authority- G.S. 115D-5: P.L.
676.52.

.0702

-352; 45 C.F.R.

EQUAL EMPLOYMEIVT
OPPORTUT^ITY

The s tate board State Board is committed to a
policy of employment and assignment of personnel
solely on the basis of qualifications and without
regard to race, national origin, color, religion,
sex, handicap, disability, age, or political affilia-
tion.

.Authoritx G.S. U5D-5: 45 C.F.R. 676.52.

.0704 ADOPTION OF DESEGREGATION
PLAN

The State Board has approved "The Revised
North Carolina State Plan for the Further Elimina
tion of Racial Duality in Public Higher Education
Sy s tem s . Pha s e II: 1978 1983 CommunityCollcg -
e s and Technical In s titutes (State Plan: — Phase II)"
and preliminary timetable s and e s timate s of annual
costs to implement "State Plan: — Phase II," dated
February 2, 1978. State board approval i s contin
gent upon approval by the U.S. Department of
Education and, in instances for which additional

funds

*^-tlw

]s are required, — upon appropriation of
required funds by the North Carolina General

A ss embly.

Statutory Authority G.S. 115D-5: P.L. 88-352.

.0705 PROCEDURES FOR PROVIDING
DESEGREGATION IMPACT
INFORMATION

fa) — The s tate board approved those aspects o
"The Revised North Carolina State Plan for the
Further Elimination of Racial Duality in the Public
Higher Education Systems, Phase A; 1978 83" (the
Plan) that pertain to the s tate board, the depart

inent, and the in s titution s . The department i s

committ e d in the plan to report to the Department
of Education, Office for Civil Rights, the impact

c propose

d actions listed below will have u

pe-

the further elimination of racial duality of public

post secondary in s titution s . In s titutions are re

s pon s ible for completing the desegregation impact
s tatement when requesting state board approval for
any of th e following action s :

f4^ approval and funding of new construe

tion or major expansion or renovation
of facilities;
>f-

f3)-

approval or new curriculum programs;
approval of any contract to which any
in s titution propo s e s to be a party — m
contracted relationships with any other
institution or agency, whether public or

1549

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November 2, 1992

PROPOSED RULES

private, for scrvioca to students or to

staff of an institution;
^4) approval to establish a new institution,

ineluding tiie legal addition of a private

institution to the Community College

System,
(b) The department i s responsible for reviewing
the desegregation impact statement and making
recommendations to the s tate board based upon

such — review. Implementation of the requested

action is contingent upon state board approval. — tn
the event that a proposed action is not recommend
cd for approval by the department the initiating
institution may request a meeting to review the
desegregation impact statement. For such review,
additional information may be submitted. — The
Department will make reports to the Department of
Education. Office for Civil Right s , concerning it s
commitment s in the plan.

Statutory Authorin G.S. 115D-5:P.L. 88-352.

SUBCHAPTER 2D - COMMUNITY
COLLEGES: FISCAL AFFAIRS

SECTION .0100 - SALARIES

.0101 ESTABLISHING PAY RATES

(a) The monthly and annual salaries or hourly
rates of pay from state funds for full-time and
part-time personnel in community colleges shall be
established by the president of the college with the
approval of the board of trustees of the college
within the line item budget approved for the
college by the State Board and in accordance with
the regulations approved by the State Board,
except that the state^funded portion of the salary of
the president of a college shall be approved by the
President — of the — Community — College System
President in accordance with the state salary
schedule for presidents. Salary increases shall be
granted annually or upon promotion to a higher
position. Legislative increases shall be granted
according to requirements set forth by the General
Assembly. The State Board shall adopt a mini-
mum and maximum amount of state funds which
may be paid to any individual working in a col-
lege. In lieu of a salary table, the minimum and
maximum amounts shall be based on the lowest
and highest amounts used in the 1980-81 fiscal
year and will be increased in subsequent years
based on actions of the General Assembly. Indi-
viduals shall be paid between the minimum and
maximum amounts at a level determined by the
salary approving authority at the college.

(b) All hourly, monthly, and annual salaries for
full-time or part-time personnel shall be certified
by the president of the college and reported to the
Department, department.

fe3 Administrative — procedures, — forms, — and

regulations for the implementation of the above
policies s hall be developed by the Department.

(c) fd) The State Board shall adopt a state salary
schedule for presidents in the system. The Presi
dent of the Community College System President
shall determine the proper placement of a
newly-hired president on the state salary schedule
based on the size of the college and the
individual's years of experience as a college
president. The total salary' compensation for any
pre s ident s hall not exceed the maximum amount
for the salary grade.

( 1 ) College size as determined by the total
FTE served and reported in the enroll-
ment reports furnished the department.

(2) Number of years of experience as a
college president:

(A) Initial placement will allow credit for
only 10 years of experience.

(B) Progression from the minimum or "0"
step to the midpoint or step "10" shall
be based on additional years of expe-
rience.

Advancement toward grade maximum
after attaining the midpoint of the
grade shall be based on merit increas-
es as recommended by the local
boards and within state allocations
available.

iC]

(D) Newly-hired presidents will not re-
ceive salary increments for any years
in which a salary freeze was in effect
for community college presidents.

(3) Changes in grade levels:

(A) President with to 10 years of presi-
dential experience moving to another
grade shall be placed in the new
grade's range at the current experi-
ence level.

(B) Presidents with greater than 10 years
of experience moving to another
grade will receive a salary adjustment
only if the current salary exceeds the
new salary grade's maximum salary
limit, in which case, the salary will be
adjusted to the maximum of the new
grade.

(4) Total salary compensation from all
sources shall not exceed the maximum
for the salary grade as determined by

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1550

PROPOSED RULES

(5)

16]

the college's size. Salary compensation
is defined as those monies paid from
u'hate\'er source for which no documen-
tation or expense is required, or which
is treated as salary for retirement bene-
fit purposes.

An interim president's salary will be set
at the step of the salan,' grade for the
respective college. Years of presiden-
tial experience will be awarded up to 10
years for placement on the appropriate
step.

Presidential salary grades shall reflect
the following:

Minimum

FTE

.Midpoint

Maximum

These data shall be increased annually
based on legislati\'e action and reviewed
no less than e\ery three years to assure
their continued national competitive-
ness,
(d) Forms and instructions for the implementa-
tion of this Rule shall be developed by the depart-
ment and set forth in the department's Accounting
Procedures Manual.

Sraruron- Authorin- G.S. 115D-5: 115D-54.

.0103 EDUCATIO\.4L LEAVE WITH PAY

(a) The term "educational leave" as defmed in
this Regulation refers to the release from duties or
time normally required of a full-time employee in
carrying out h+s the full load of responsibilities
assigned.

(b) Each local board of trustees shall adopt an
educational leave policy for employees. State
funds may be used to pay employee salaries while
they are on educational lea\'e if the follov.ing
criteria are incorporated in the local board of
trustees trustees' policy:

(1) The employee is employed full-time on
a 9. 10. 11. or 12 month 9^ W^^ U^
or 12-month basis.

(2) The employee must be under contract
to the institution college for the next
academic year.

(3) Educational lea\'e will not exceed a
period of 60 work dQ\'5 one uni\ersit\
semester a calendar year.

(4) An employee who fails to honor the
contract stipulated in Subparagraph
(b)(2) of this Rule shall be required to
repay the amount expended for the
educational leave. If the employee
fulfills a portion of the contract before

failing to honor the contract, repayment
shall be based on a pro-rata portion
(e.g., if an employee works 4 months
of a 12-month contract, a repayment of
66.7 percent of the educational leave
would be required).

Statutory Authority
115D-54.

G.S. U5D-3: U5D-5:

.0104 MILITARY LEAVE

Leave with pay s hall be granted to members of
reserx'c components of the U.S. Armed Forces for
certain periods of active duty training and for state
military' duty. — Reserve components of the U.S
Forces are the National Guard, the Army Reserve,
the Naval Reserve, the Marine Corp s Re s erve, the
Air Force Reserve and the Coa s t Guard Reserve.
The Ci\il ;\ir Patrol is not a reserve component:
it is an Air Foroc Auxiliary' and its members are
not subject to obligatory' ser^^iee. — The National
Guard is unique among the re s erxe components in
that it has a dual role, serving both a s a federal
rcserx'c component and as the State Militia. — In it s
role as the State Militia, the North Carolina Army
National Guard and the North Carolina Air Na
tional Guard respond to the Governor who is their
Commander in Chief and s erve as th e military' arm
of the state government. Therefore, the National
Guard is subject to active state duty upon order of
the Goxernor:

ri^

Periods of Entitlement for All Rc s erxe
Components. — .Militarv' lea\-e with pay
shall be granted to full time or part time
permanent — (prorated — for part time — e<«-
ployces). provisional trainee and proba
tionarv' employee s for 96 working hour s
annually for any type of aetise militarv
duty of a member not on extended active
duty as defined below. — On rare occa
sions — dtte — te — annual — training — (summer
camp) being scheduled on a federal fi s cal
year basis, an employee may be required
to attend two periods of training in one
calendar year. For in s tance, the employ
ee — iftay — fee — required to — attend — annual
training for federal fi s cal year 1980 in
March and for federal fiscal \ear 1981 in

November.

iNovcmbor. — hor thi s purpo se only, an
employee shall be granted an additional
96 hours military' lea\e during the s ame
calendar year as required.

4^ Additional — Periods — of Entitlement — fer

National Guard Members

1551

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November 2, 1992

PROPOSED RULES

^«^ Infrequent special activities in tho inter

est of the state, usually not exceeding
one day. when so ordered by the Gov
ornor or his authorized representative;

(b) Active state duty (domestic di s turbanc

cs. disaster s , s earch and rescue, etc.)
for periods not exceeding 30 eonsecu
tive calendar days; For periods in ex
cess of 30 days, employees shall be
entitled to military leave with differen
tial pay between military pay and regu
lar state pay if military pay is the less
ef-. — Military leave for active state duty
is to be con s idered separate from and in
addition to military leave which may be
granted for other purposes.
Period s — e4 — Entitlement — for — Civil — Atf

Patrol. When performing missions or

encampment s authorized and requested
by the U.S. — Air Force or emergency
mis s ions for the State at the request of
the Governor or the Secretary of Crime
Control and Public Safety, a member of
the Civil Air Patrol i s entitled to military
leave not to exceed a combined total of
96 hours (pro rated for part time employ
e e s ) in any calendar year unless other
wi s e authorized by the Governor. — Such
service may be x'crified by the Secretary
of Crime Control and Public Safety upon
request of the employing agency.

(4) Unacceptable Periods. — Employees shall

not be entitled to military leave for the
following periods:

fa3 Regularly — scheduled — ttfwt — assemblies

u s ually — occurring — on — weekend s — and
referred to a s "drill s ." — Although these
periods are unacceptable for military
leave with pay. the employing agency i s
required by federal law to excuse an
employee for regularly scheduled mili
tary training duty. — If necessary, the
employee' s — work — schedule — shaH — be
appropriately rearranged to enable the
employee to attend the s e assemblies.
To determine the dates of these regular
ly scheduled unit assemblie s , the em
ploying agency may require the em
ployee to provide a unit training sched
«+e — which — Itsts — training — dat es — for a
month or more in advance. — Employing
agencies arc not required to excuse an
employee — for — military — service — pef-
formcd under the circum s tance s defin e d
in (b), (e). and (d) of this Item;

{b) duties resulting from disciplinary ac

tions imposed by military authorities;

^e) for unscheduled or incidental military

activitie s . — such as volunteer work at
military — faciliti es . — unofficial — military
activities, etc.;

ff¥

for inactive duty training (drills) per
formed — fef — the — convenience — of the

memb e r, such as equivalent trammg
split unit assemblies. moJce up drills.

iS) Admini s trative — Responsibilities. The

president of the institution may require
th e employee to s ubmit a copy of his
orders or other appropriate documenta
tion evidencing performance of required
military duty.

Retention and Continuation of Benefit s

During the period of military leave with
pay. no employee s hall incur any loss of
state service or suffer any adver s e service
rating. — The employee shall continue to
earn and accumulate sick and annual
leave, aggregate service credit, and re
ceive any promotion or salary increase
for which otherwise eligible.

Leave — fef — Physical — Examination — fef
Military Service. — An e mployee shall be
granted necessary time off when required
to undergo a physical examination relat
ing to military service.

(«3 Military Leave With Differential Pay.

Military leave with differential pay be
tween military pay and regular state pay.
if military pay is the lesser, shall be
granted for active s tate duty for periods
in exce ss of thirty con s ecutive days.

t93 Military Leave Without Pay. — Military

leave v»'ithout pay shall be granted for
certain — periods — of active — duty or for
attendance at s ervice s chool s . Except for
extended active duty u s e of all or any
portion of an employee' s 96 hours annual
military — leave — (prorated — fer — part time
employees) with pay or regular annual
(vacation) leave may be u s ed in lieu of or
in conjunction with military leave without
payr

ffO) If additional — information — i« — required.

reference should be made to the Noilh
Carolina Office of State Personnel Manu
air

(a) The rules concerning military leave, codified
as Title 25. Subchapter IE. Section .0800. are
hereby adopted by reference including any subse-

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NORTH CAROLINA REGISTER

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1552

PROPOSED RULES

quent amendments and editions of these Rules to
apply to community college system employees.

(b) Copies of 25 NCAC. Subchapter IE, Section
.0800 may be inspected in or obtained from the
Office of the System President, Department of
Community Colleges, 200 West Jones Street,
Raleigh, North Carolina, 27603-1337.

Siaiiaon Authority G.S. 115D-5: 127A-116.

.0105 ANNUAL: SICK: MATERNITY: AND
FUNERAL LEAVE AND HOLIDAYS

Annual leave, sick leave, maternity leave, funeral
loa\'o. civil leave and holiday leave policies shall
be C L itablished by each local board of trustees and
a copy filed with the State President. — Sick leave
qualifs'ing for sick pay exclu s ion of social security'
benefit s must conform to the guidelines developed
by the Federal Government which defines qualify'

tftg — stek — l e ave. (See — Accounting — Procedures

Manual).

Statutory- Authority G.S. 1150-5.

.0109 LONGEVITY PAY PLAN FOR
COLLEGE PERSONNEL

(a) Employees of institutions colleges in the
community college system assigned to permanent
full-time or permanent part-time positions shall
receive longevity pay if the employees meet the
requirements of total qualifying service set forth in
this Rule.

(b) Total service for the longevity pay plan is
based on a month-for-month computation of
permanent full-time and permanent part-time (20
hours or more, but less than full-time) employment
with:

( 1 ) an institution a college in the communi-

ty college system or a school adminis-
trative unit regardless of the source of
salary and including state, local or
other paid employment.

(A) Employment for a school year is
equivalent to one full calendar year
(credit for a partial year is given on a
month-for-month basis).

(B) In no event will an employee earn
more than a year of total service
credit in a 12-month period.

(C) If an employee is in pay status (work-
ing, exhausting vacation or sick leave,
or when on workers' compensation
leave or is on authorized military
leave) for one-half or more of the
regularly scheduled workdays in a

month, credit shall be given for the
entire month.

(2) departments, agencies, and institutions
of the State of North Carolina, (e.g..
State Department of Administration,
State Revenue Department, University
of North Carolina, State Department of
Community Colleges, State Department
of Public Instruction).

(3) other governmental units which are now
agencies of the State of North Carolina
(e.g., county highway maintenance
forces. War Manpower Commission,
judicial system).

(4) county agricultural extension service.

(5) local mental health, public health,
social services or civil preparedness
agencies in North Carolina, if such
employment is subject to the State
Personnel Act.

(6) authorized military leave.

(A) Credit for military leave is granted
only for persons who were employees
of the State of North Carolina or
other agencies listed in Paragraph (b)
of this Rule who were granted leave
without pay:

(i) for a period of involuntary service
plus 90 days or for a period of
voluntary enlistment for up to
four years, plus 90 days, so long
as they returned to employment in
a covered agency within the 90
days; or

(ii) for a period of active duty for
service, alerts, or required annual
training while in the National
Guard or in a military reserve
program.

(B) Employees who enlist for more than
four years or who re-enlist shall not
be eligible for military leave.

(C) Employees hospitalized for a
service-connected disability or injury
shall be granted additional leave
without pay for the period of hospital-
ization plus 90 days or for 12 months,
whichever is shorter. The hospitaliza-
tion must commence before reinstate-
ment into qualifying service for the
provisions of this part to apply.

(1) Temporary service, that is, service by
an employee who works in a temporary'

1553

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NORTH CAROLINA REGISTER

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PROPOSED RULES

position, or who is working temporarily
in the absence of a permanent employee
on leave of absence, except that tempo-
rary service of employees of the Gener-
al Assembly will be counted and the
full legislative terms of the members.
Service of legislative interns and pages
will not be counted.

(2) Periods of out-of-state employment with
other states, schools, colleges or uni-
versities.

(3) Periods of employment with agencies of
the federal government.

(4) Periods of military service other than
those categories described in Subpara-
graph (b)(6) of this Rule.

(5) Periods of employment for employers
other than the State of North Carolina
even though credit in the North Caroli-
na retirement system has been pur-
chased for such employment.

(d) An employee assigned to a permanent
full-time or permanent part-time position is eligible
for longevity pay only after the date the employee
has completed ten years of total service with a
community college, a school administrative unit or
a agency.

(e) Annual longevity pay amounts are based on
the length of total service to agencies, community
colleges, and school administrative units as desig-
nated in Paragraph (b) of this Rule and a percent-
age of the employee's annual rate of pay on the
date of eligibility.

(1) Longevity pay amounts are computed
by multiplying the employee's annual
base or contract salary rate as of the
eligibility date by the appropriate per-
centage, rounded to the nearest dollar,
in accordance with the following table:

Years of Total State Service

Longevity

Fay Rate

10 but less than 15 years

L50%

15 but less than 20 years

2.25%

20 but less than 25 years

3.25%

25 or more years

4.50%

(2)

Longevity pay is not considered a part
of annual base or contract pay nor is it
to be represented in personnel and
payroll records as a part of annual base
or contract salary. (Salary increases
effective on the same date as the lon-
gevity eligibility date shall be incorpo-

rated in the base pay before computing

longevity),
(f) The payment of longevity pay to eligible
employees is automatic. Payment shall be made in
a lump sum, subject to all statutory deductions,
during the monthly pay period in which the em-
ployee has satisfied all eligibility requirements.

(1) Eligible employees on worker's com-
pensation leave shall receive longevity
payment in the same manner as if they
were working.

(2) If an employee retires, resigns, dies, or
is otherwise separated on or after the
date of becoming eligible for a longevi-
ty payment, the full payment shall be
made to the employee or to the estate of
the employee in case of death.

(3) If, on the effective date of this policy,
an employee has completed the qualify-
ing length of service but is between
eligibility dates, longevity payment will
be made on the next longevity anniver-
sary date.

(4) If the employee has worked part but not
all of one year since qualifying for
longevity payment, the employee shall
receive a pro-rata payment in the event
of:

(A) separation from the institution;

(B) change in employment status to tem-
porary part-time, or to a position not
covered in this policy.

(5) If an employee separates from a com-
munity college and receives a partial
longevity payment and is employed by
another community college, school
administrative unit, or state agency, the
balance of the longevity payment shall
be made upon completion of additional
service totaling 12 months for an em-
ployee having a 12-month period of
employment, or upon completion of a
lesser term for an eligible employee on
less than a 12-month period of employ-
ment. The balance due is computed on
the annual or contract salary being paid
at the completion of the requirement.

(6) If an eligible employee at the time of
separation has a fraction of a year
toward the next higher percentage rate,
payment shall be based on the higher
rate; however, the basic eligibility for
longevity requirement must have been
satisfied before this provision can ap-
ply.

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1554

PROPOSED RULES

(7) Leave without pay in excess of one-half

the work days in a month (with the

exception of authorized military leave

and worker's compensation leave) will

delay the longe\ity anniversary date on

a month-for-month basis.

(g) Longevity pay shall be made from the same

source of funds and in the same pro-rata amounts

from which the employee's regular annual salary

is paid (e.g. state, federal, local funds).

( 1 ) Local trustees may provide Ionge\'ity
payments to employees from other than
state allotted funds.

(2) Onlv personnel employed in positions
allotted by the formula in Rule 2D
.0301(d) of this Subchapter shall re-
cei\'e longevity pay from the longevity
reser\e. .-^n additional allocation will
be made for this purpose.

(3) Employees in state-allotted positions
paid with state-allotted funds other than
regular formula allotments shall recei\'e
longe%ity pay from the same source of
funds as their salary payment.

(4) Employees paid with the following
specified funds shall receive longevity
pay from these respective sources:

(A) Adult basic education Basic Education
funds.

(B) Human re s ource — dovolopmont Re-
source De\elopment funds.

(Ci New industr\' Industn.' funds,
(Di JTPA funds.

(E) Special allotment funds.

(F) Federal vocational educational Voca-
tional Educational funds, and

(G) Local funds.

(h) The president of each community college
shall:

( 1 ) Determine the quantity of qualifying
service and the longe\ity anniversary
date for each eligible employee.

(2) Furnish to the state board, on forms
prescribed b\' the Department, depart-
ment, data necessary for a determina-
tion of the cost of the longevity pay
plan from state funds.

(i) The System President of the Community
College System shall determine the total cost of the
longe\ity pay plan from data submitted by each
community college. If funds are not adequate to
pay longevity rates established under this Rule, the
System President of the — Community — College
Sv s tem shall submit a budaet resision to the State

Budget Officer requesting additional funds from
other available sources within State Aid.

Statutory Authority G.S. 115D-5; S.L. 1979. ch.
1137. s'. 21.

SECTION .0200 - STANDARD STUDENT
FEES

.0201 .ALTHORITi' TO EST.\BLISH
TTTTION ANT) FEES

(a) Authority to Charge. All tuition and fees
charged to students for applying to or attending
any institution college of the system must be
appro\ed by the State Board. No tuition rate or
fee schedule shall be charged without appropriate
resolution of the State Board specifying the pur-
pose for which the fee is charged.

(h) Time Due and Deferred Payment. Tuition
and required academic fees are due and payable at
the time of the student's registration. The institu
ti^ft college shall, with the approsal of the local
governing board, prescribe written procedures to
permit short-term deferred payment or payment in
installments; provided, however, that no student
shall be permitted to graduate or to register for a
new quarter unless payment of such outstanding
balance has been guaranteed in writing by a
financially responsible person or organization.
Institutions Colleges are authorized to withhold
transcripts of grades pending resolution of the
outstanding obligations. This statement shall not
be construed to prohibit an in s titution' s a college's
local go\erning board from adding more stringent
proN'isions, if deemed advisable.

(1) In the event that the president and the
governing board of an — institution a
college believe that the in s titution col-
lege needs to charge a student fee other
than the fees already authorized by state
statute or State Board regulation, the
president of the institution college shall
file with the State Board through the
State Sx'stem President, a request for
authorization which shall include the
following documentation:

(Aj a resolution of the local governing
board requesting authorization of the
fee. stating the exact rate of payment
proposed: and

(B) a brief explanation and justification
stating the purpose of the levy. fee.

(2) Any additional fee established by as
institution a college which is approved

/.r>"

7:15

XORTH CAROLIXA REGISTER

November 2, 1992

PROPOSED RULES

by the State Board is considered a
separate charge to curriculum students
and shall not be credited as part pay-
ment of tuition.

(3) Receipts collected from the levy of any
special student fee shall be deposited as
State Board regulation, consistent with
state law, shall direct. The State Board
may provide for special allocations to
the institution, college, within the
amount collected from the special stu-
dent fee, in order to pay expenditures
for the institutional college purposes
approved by the State Board incident to
authorizing the fee to be charged.

(4) Nothing in any rule shall be construed
to condone or to authorize any practice
of depositing receipts from any student
tuition and/or student fees in a special
fund account at an institution, a college,
except the student activity fee receipts
authorized by G.S. 115D-39.

(d) Additional Student Charges. The Board of
Trustees may determine additional student charges
for items such as tools, supplies, equipment,
insurance, uniforms, and travel. Such charges
should be kept to a minimum so as to be consistent
with the State Board philosophy to keep student
costs as low as possible. Students shall be in-
formed of all approximate charges for a course at
the time they enroll. Institutions Colleges shall
inform the State Department department regarding
all such charges and modifications.

Authority G.S. 115D-5; 115D-39; 115D-54;
116-143. 1; N. C. Constitution, Article IX.

.0202 CURRICULUM

(a) Tuition.

(1) Student Residence Classification.
Ref e rence should The classification of
students for tuition purposes shall be
made pursuant to the provisions of "A
Manual to Assist the Public Higher
Education Institutions of North Carolina
in the Matter of Student Residence
Classification for Tuition Purposes."
authorized by the State Board for use in
this area.

(2) Tuition Rates In-State.

(A) A general and uniform tuition rate is
established by the State Board for
full-time curriculum students ©f
thirty nine dollars ($39.00) per quar-
ter for North Carolina residents.

(B) A North Carolina resident who is a
part-time student shall pay three
dollars and twenty five cent s ($3.25)
a per credit hour rate for curriculum
instruction, but not to exceed total

payments ef — thirty nine — dollars

($39.00) as established by the State
Board, for such tuition in any quarter.
The — formula — fef — computation — ef
credit hour — equivalency — and — credit
hours — mte — tuition — charges — fer
part time curriculum instruction shall
be as follows:

(t) 1 cla ss hour = 1 credit hour,

(ti^ 3 — laboratory — hour s — = — I — credit

hour,

3 shop hours

1 credit hour.

1 quarter credit hour X $3.25 =
tuition — per — quarter — but — net — te
exceed $39.00 total per quarter.

(3) Learning Laboratory. No tuition fees
charged.

(4) Tuition Creditable Upon Transfer of
Student. When a student has paid the
required tuition at an institution a col-
lege and is given permission to transfer
to another institution college within the
system during the academic quarter for
which the fees were tuition was paid,
the institution college from which the
student transfers shall issue to him a
statement certifying the amounts of
tuition that have been paid, and the
institution college to which he is trans-
ferring shall accept such certificate in
lieu of requiring payment of the same
again.

(5) Tuition Student Enrolled in More Than
One Institution. College. Where a
student desires to enroll for the same
quarter at two or more institutions
colleges of the system, the total amount
of tuition and fees may be paid to the
student's "home" in s titution, college.
The home institution college shall, in
that case, assume responsibility for
arranging with the other in s titution
college or institutions colleges for
enrolling the student in appropriate
classes without further charge. Such
arrangement shall be made by exchange
of letters between the institutions col-
leges involved. Student membership
hours for instruction received shall, in
any event, be reported by the institution

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1556

PROPOSED RULES

college in which the respective instruc-
tion occurred.

(6) Tuition Rates Out-of-State.

(A) Any full-time curriculum student who
is an out-of-state resident shall pay
tuition fees as follows: seven hundred
ninety two dollar s ($792.00) for th e
year, — &f — &fte — hundred — ninety eight
dollar s ($198.00) established by the
State Board for each quarter.

(B) An out-of-state resident who is a
part-time student (regi s tered for le ss
than 12 credit hour s in a given quar
tef^ shall pay sixteen dollars and Fifty
cents ($16.50) a per credit hour rate
for curriculum instruction as estab-
lished by the State Board.

(7) Tuition Exemptions.

(A) Senior Citizens. North Carolina
residents. 65 years of age and older,
shall be exempted exempt from the
payment of curriculum tuition, afld
extension registration fees in aecor
dance with Chapter 981 of the 1977
Ses s ion Laws. FTE credit shall be
given for the enrollment of these
students on the same basis as students
who pay tuition.

(B) Prison Inmates. No tuition or fee s of
any kind shall be charged curriculum
or exten s ion students who are prison
inmates.

(C) Institutional College Staff Members.
Full-time college Institutional staff
members may enroll in one curricu-
lum or extension course per quarter in
the system without payment of tuition.

Of — regi s tration — fee charge s . (Thi s

exemption applies to full time staff
members only.)

(D) High School Students. High school
students taking courses at community
colleges pursuant to 23 NCAC 2C
.0305 of this Chapter are exempt
from tuition and registration fees .

(E) Basic Law Enforcement Training
Program (BLET) for law enforcement
officers. All law enforcement officers
employed by a municipal, county,
state, or federal law enforcement
agency when taking courses in a
state-mandated BLET training pro-

gram, are eligible for the tuition

waiver.

(b) Pre- Enrollment Deposit. When a prospec-
tive student has made application for admission
and has been accepted, r e gi s ter s in advance of the
opening of the regular registration period of a
quarter, the student may be required to pay an
enrollment advance deposit as established by the
State Board, for the classes for which registered
up to a maximum of fifteen dollars ($15.00). This
advance payment is not refundable unless covered
by the refund policy stated in Subparagraph (f e)
(1) of this Rule. This advance payment shall be
deposited to the State Treasurer and credited
against the full tuition charges due from the stu-
dent during the regular registration period.

(c) Enrollment Fee (Late). A late enrollment
fee &f set by the State Board up to five dollars
($5.(X)) may be charged curriculum students
registering after the specific closing date of regis-
trations, with such fees becoming state funds.

(d) Uniform s . Student uniforms or other special
wearing apparel s hall not be paid for from state
budgeted funds except in the ease of those eductt '
tional program s (e.g. — LPN) where it is found
nece ss ary by the State Board that the wearing of
uniforms be required.

(d) (e) Student Activity Fee. Institutions Colleg-
es may establish a student local activity fees fee
which may include a parking fee or a scheduled
N'ehicle registration fee. However, students shall
not be assessed a parking fee, a vehicle registra-
tion fee, or a similar fee m addition to the estab-
lished student activity fee. The maximum amount
charged for the student activity fee shall be deter-
mined by the State Board, net — t© — exceed
twenty eight dollars ($28.00) per student per fiscal
year. — (This maximum is intended to include any
s cheduled — parking — fee.) Funds derived from
collection of a student activity fee wtW shall be
accounted for and expended under standing proce-
dures and regulations adopted by the local govern-
ing board of the H»tifut+&ftT coUege^ Any expendi-
ture from the fund must be related directly ie
benefit students, student activities.

(e) ff) Tuition Refunds.

( 1 ) A refund shall not be made except
under the following circumstances:

(A) A full refund may be made upon
request of the student jf the student
officially withdraws from the class(es)
within 10 calendar days after the first
day of class as published in the col-
lege calendar.

(B) A letter of credit may be issued at the
discretion of the college president or
designee upon the written request of

1557

7:15

NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

iCl

ey-

the student at any time after the 10th
calendar day. If the letter of credit is
issued, the student shall not be report-
ed for budget/FTE purposes. The
letter of credit must be used by the
student to whom it was issued within
one year from the date of issuance.
The letter may be used at any college
in the system.

For classes beginning at times other
than at the beginning of the quarter,
apply the same provisions set forth in
Part (1)(A) and (B) of this Paragraph
except use 10 calendar days from the
first day of the class(es) as the deter-
mination date.

fl-) Tuition refunds for students shall not

made unles s the student is, in the judg
mcnt of the institution, compelled to
withdraw for unavoidable reasons. — k>
such cases, two thirds of the s tudent' s
tuition may be refunded if the student
withdraws within 10 calendar days after
the first day of cla ss e s a s publi s hed in
the school ca l endar. — Tuition refunds
will not be considered after that time.
Tuition refunds will not be considered
for tuition of five dollars ($5.00) or
less, except if a course or curriculum
fails to materialize, all the s tudent s '
tuitions shall be refunded.

{S) In order to comply with federal rcgula

tions in institutions not regionally ac
credited. — the — State — Board — authorized
modification of the tuition refund policy
so that veterans or war orphans receiv
ing benefit s under U.S. Code. Title 38,
Chapter s 33 and 35. can be refunded
the pro rata portion of the tuition fee
not used up at the time of withdrawal of
such s tudent s .

-^Wht

id the

lere a s tudent, having pam the re
quired tuition and fee s for a quarter,
withdraw s from the institution before
the end of the quarter and the rea s on s
for the withdrawal are found excusable
by the in s titution's administration, the
s tudent — may — be — allowed — credit — fer
unrefunded tuition and fees if he applies
for readmission during any of the next
four calendar quarters and petitions in
writing to be allowed s uch credit.
(2) To comply with applicable federal
regulations regarding refunds to indi-
viduals or groups, federal regulations

will supersede the state refund regula-
tions stated in this policy.
(3) f4) Where a student, having paid the
required tuition and fees for a quarter,
dies during that quarter (prior to or on
the last day of examinations of the
in s titution he college the student was
attending), all tuition and fees for that
quarter may be refunded to the estate of
the deceased.

Authority G.S. 115D-5: 115D-54; 116-143.1; N.
C. Constitution. Article IX; P.L. 93-508.

.0203 EXTENSION PROGRAMS

(a) Registration fees for Non-Curriculum Exten-
sion Instruction. For purposes of administration of
this Rule, non-curriculum extension instruction
means all instruction organized, supervised, or
delivered by an instructor or in s tructor s a ss igned
respon s ibility for the teaching — of any — defined
category of subject matter or special skills to be
presented and developed through a s ingle course,
or through any discrete training program or train
iftg — project organized — and offered outside the
regular currieulums curriculum programs offered
by the in s titution, college.

(1) A registration fee^^ as established by the
State Board, of eight dollar s ($8.00)
shall be charged for each occupational
extension class, or academic course
and fifteen dollars ($15.00) shall be
charged — for each — practical — alcills — &f
avocational course when such couisc is
s upported — primarily — by — state — fund s
except as otherwise specifically provid
ed for in the following Subparagraphs.

(2) A registration fee shall be charged for
each extension class of 17 weeks or

lesih A — regi s tration — fee — shall — be

charged each — 13 weeks for exten s ion
classes lasting longer than — 17 weeks.
Each local board is delegated the re-
sponsibility to establish registration fees
for Community Service Programs (aca-
demic, practical skills, avocational. and
cultural/civic activities).

(3) All recreational courses are must be
self-supporting.

(A) In s titution s Colleges are required to
collect and deposit to a local account
fees and other contributions in suffi
cicnt amounts to support entirely the
costs of all recreational extension
courses taught during the school year.

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NORTH CAROLINA REGISTER

November 2, 1992

1558

PROPOSED RULES

(B) Also, note Paragraph fe) {bj of Rule
■m^ .0325 of this Subchapter re-
garding the reporting of student mem-
bership hours for this area.

(4) A registration fee shall be charged for
each extension class of \1_ weeks or
less. A registration fee shall be
charged each 13 weeks for extension
classes lasting longer than 17 weeks.

(5) (4^ Extension Registration Fee Exemp-
tions:

(A) Special Extension Training Programs.
No fees of any kind shall be charged
students enrolling for special exten-
sion training programs set forth in
G.S. 115D-5(b).

(B) Senior Citizens. No extension regis-
tration fee shall be charged senior
citizens attending institutions, colleg-
es. "Senior Citizens" are defined to
mean persons age 65 or older who are
North Carolina residents.

(C) Institutional College Staff Members.
Full-time institutional college staff
members may enroll in one extension
or curriculum course per quarter in
the system without registration fee or
tuition charges.

(b) Self- Supported Courses. An institution A
college shall have the authority to sponsor
self-supporting courses, recreational courses [see
23 NCAC 2E .0101(e)(2)]. and community s ervice
courses [see 23 NCAC 2E .0101(c)(1)]. deposit
income (if any) to a local account, and pay all
expenses from such local account. However.
s tudent member s hip hour s produced from s uch
activitie s s hall not be counted for inclu s ion when
computing FTE for use in budget funding formulas
at the s tate level.

(c) Driver Education. In s titution s Colleges are
required to collect a student fee as established by
the local board of trustees of eight dollars ($8.00)
for the 5 4 hour adult driver education training
course offered through the community service
program, exten s ion program, such fee shall be
depo s ited a s s tat e funds. The institutions may also
charge each s tudent a fee to pay non per s onnel
cost s (car operation, admini s trative fee on loan
car s , and in s tructional materials) at rates in keep
ing with the actual cost a s determined by the s tate
board. — Such fees shall be deposited to s tate flind s
and shall be ax-ailable for reallotment to the in s titu
tion s ba s ed upon written iusiitloation. — The admin
istratiw fee on loan car s s hall be compatible with
the rate established bv the State Board of Educa

tion for the comparable high school program.

These funds may be used to purchase gasoline, oil,

and car in s urance, and to pay car loan administra

tivc fee s , and other essential expenditures.
(d) Refunds for extension courses. — Registration

fee refund s s hall not be made unles s a class fails to

develop.
(d) Registration Fee Refunds. A refund shall

not be made except under the following circum-

stances:

A full refund may be made upon re-
quest of the student if the student offi-
cially withdraws from the class(es)
prior to or on the first day of the
class(es).
A letter of credit may be made at the

ill

discretion of the college president or
designee after the first day of class(es)
upon written request of the student at
any time during the quarter. Under this
circumstance, the student shall not be
reported for budget/FTE purposes. The
letter of credit may be used at an\

college in the system, but it must be
used by the student to whom it was
issued within one year from the date of

issuance.

ill

For classes beginning at times other
than at tlie beginning of tlie quarter,
also apply the same provisions as set
forth in this Paragraph.

Statutory Authority G.S.
115D-54.

115D-I; 115D-5:

.0204 OTHER FEES

(a) Equipment Fees. A local equipment fee may
be established, not to exceed the fee charged high
school students, in cases where high school build-
ings and equipment are being used: such fees shall
be deposited in the college's local account and paid
to the local school unit.

(b) Damage or Breakage Fees. Colleges shall
charge no breakage fees, property-damage fee, oi'
laboratory fee to students, but except in tlie case of
breakage or damage due to gross negligence or
maliciousness. a student shall be expected to
remunerate the college. — Ht* Credit may be with-
held until proper payment is made.

(c) Library' Fines. All library' fines, except
book-replacement fines, shall become local funds
and be used for improvement of the library.

(d) General Educational Development (GED)
Fee. All applicants who take the GED test at
official GED Testing Centers in the system are

1559

7:15

NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

required to pay a fee established by ttie State
Board. This fee shall not be required from indi-
viduals incarcerated or receiving treatment in
institutions operated by the Department of Correc-
tion and the Department of Human Resources.

Statutory Authority G.S. 115D-5; 115D-54; S.L.
1979. ch. 1300.

.0205 DEPOSIT OF FEES

All registration, tuition, and instructional fees
and book replacement fines shall become state
funds when collected and must be deposited to the
credit of the State Treasurer. as provided in
Chapter 1 15D, General Statutes of North Carolina.

Statutory Authority G.S. 115D-5; 115D-54;
115D-58.3.

SECTION .0300 - BUDGETING:
ACCOUNTING: FISCAL MANAGEMEIVT

.0301 OPERATING BUDGET REQUESTS:
DISTRIBLTION OF FUNDS

fa) — General :

{i^ One full time equivalent (FTE) student

represent s sixteen s tudent membership
hours per week for 1 1 — v^'ccks or 176
student — membership — hour s — fef — each
quarter enrolled.

(3) Rule 23 NCAC 2D .0328 sets forth the

specific categories for which FTE shall
be calculated.
(a) -(3-) Projections of full-time equivalent (FTE)
students will be based on the following:

(1) {A} Curriculum FTE projections will be
based on the three-quarter academic
year (fall, winter, spring).

(2) fB) Continuing education FTE projec-
tions will be based on the feH latest
spring, summer, fall, and winter
four-quarter fiscal year (summer, fall,
winter, s pring), average.

(3) {Gi Projections will be made, program
by program, utilizing actual FTE for
the most recent five year period, as
stated [n Subparagraph (a)( 1) and (2) of
this Rule. If the actual FTE for the
quarters needed are not available, the
latest actual quarter will be multiplied
by the latest five-year retention ratio to
determine the appropriate estimates.

(4) i&) The State Board may adjust the
projections based on additional factors
brought to its attention.

(5) (E) The State Board will adopt an
official projection of FTE.

(b) Appropriation Requests;

(1) Continuation Budget Requests. The
continuation budget request will be
based on the number of FTE and
amount per FTE currently appropriated
and increases in the continuation budget
as directed by the Office of State Bud-
get and Management. Also included in
the continuation budget requests will be
continuing categorized programs, that
afe — funded — apart — from — the — formula
budget such as new industry, human
resources development, etc.

(2) Expansion Budget Requests. The ex-
pansion budget requests may consist of,
but is not limited to. the following
items:

(A) an adjustment in the number of FTEs
in existing programs based on the
difference between the official FTE
projections of the State Board and the
existing level of FTEs requested in
the continuation budget.

(B) an adjustment in expenditure per
FTE,

(c) Allotment State Board Reserve. A reserve
will be requested from the General Assembly and
shall be retained by the State Board for the pur-
pose of making later allocations for enrollment
growth, innovative programs, new concepts, etc.

(d) Formula distribution of funds for the current
operation budget. Funds appropriated to the State
Board of Community Colleges for current opera-
tion shall be allocated to the system colleges in
accordance with formulas and procedures estab-
lished by the State Board, of Community Colleges,
or as directed by the General Assembly. Formulas
and procedures to allocate funds shall be pub-
lished in the department's Accounting Procedures
Manual. North Carolina Department of Communi
ty Colleges.

(e) JTPA Administrative Allotment. Student
class hours for class size projects funded by the
Job Training Partnership Act (JTPA) may not be
included in the full-time equivalent (FTE) formula
for earning budget/FTE. Administrative funds for
operating these class size projects shall be allocat-
ed on the same basis as all other administrative
formula funds.

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NORTH CAROLINA REGISTER

November 2, 1992

1560

PROPOSED RULES

Statutory Authority G.S. 115D-3: 115D-5:
115D-54.

.0302 GENERAL PROVISIONS: FORMLXA
ALLOTMENT OF OPERATING
FL'NDS

fa-t — A lump sum amount, baaed on the appliea
tion of the formula, will be made to each institu

tion as soon as possible after the Appropriations
Act has been adopted by the General Assembly.
At the same time, eaeh in s titution ^111 be notified
of any restrictions that ha\e been imposed upon
the use of the s e funds.
fb-> — Institutional Budget Preparation

Each institution

sheH-

tst-

prepare and s ub
mit for approval, on forms supplied by
the Department, a line item budget in
accordance with G.S. 1 15D 5 4 .
In wars in which the General . - Vssembly
is in session, the following method of
budget preparation shall be u s ed:
fA) — Budgets shall be s ubmitted in accor
dance with G.S. 1 15D 5 4 . with initial
budgets for s tate fund s ba s ed on th e
s ame lexel s as the current year.
{&) — jMter the institution s ha\e been noti
fied of the actual allotment of state
fund s and the restrictions that may be
imposed upon the expenditure of these
fund s , a re\i s ed budget shall be pre
pared and — s ubmitted — in accordance
with G.S. 115D 5 4 .
4

nstitutional — budget s — s ubmitted — fef
approval — ifl — accordance — v¥rth — G.S.

15D 5 4 shall be rex

sd — h\ — tfee

department to assure compliance with
allotments and budget restrictions.
k^ — .Monthly Report. — Actual expenditures, by
line item, and requests for certification of fund s
shall be s ubmitted monthly in a manner s pecified
by the Department.
fd4 — Transfer s Between Budget Items

f4-t-

The following line items as the\' relate

te — state — fund s cannot — have tran s fer s
made into them without prior approval
of the State Board:

fA4 — college transfer.

f-B-) — recreational programs.

fG-i — plant operations and maintenance.

f©-» — capital outlay.

t3-) The following line items as thc\' relate

te — state funds cannot — have tran s fer s

made out ot them without prior approv
al of the State Board:
+Ah — adu l t high s chool.

fB) — plant operations and maintenance.
{Qj — capital outlay.

i%^ The following line items as they relate

t« — s tate fund s cannot have transfers

made

ith th

e ap

out ot them except w
proval of the Department:
■fA) — new industry training,
fft — employee benefits.
fe^ — Institutions are encouraged to determine as
soon as possible the amount of funds, if any.
which they can release for reallocation to other
in s titution s .

ff) — The State Board may. from funds available
to it from the on e percent FTE reserve, voluntarily
reverted — fund s — and other funds which — mav be
available — to the — State — Board. — consider malcing
special allotments to individual institutions on the
ba s i s of documented emergency or special needs.
fg-i — The Department may mal ' ce supplemental
allotment s during the fiscal year when properly
justified, subject to the axailability of funds. — tAH-
such supplemental allotments shall be reported to
the State Board.

Statutory Authority G.S. 115D-5: 1150-54.

.0303 DISBLTISEMENT OF STATE FUSDS

G.S. 115D58.3 requires that state State funds
expended by the institutions colleges shall be
disbursed through a disbursing account established
for each institution college with the State Treasur-
er. The signature of persons authorized to sign
vouchers issued on state funds shall be maintained
on file with the State Treasurer and the State
Board. The State Treasurer will furnish signature
cards for this purpose.

Statutory Authority G.S. 115D-54: 115D-55:
1150-58.3.

.0304 EXPENDITLTIES OF ST.\TE FLTsDS:
ACCREDIT.\TION EXPENSES &
DUES

Expenditures of state funds for accreditation
expenses and dues shall be in accordance with
procedures set forth in the department's Account-
ing Procedures Manual.

fft^ — Accreditation expenses relative to Southern
Association of Colleges and Schools may be paid

ffef

s tate tiind s within the institution'

current

allotment. The s e expenses s hall be limited to

payment — ef — travel. — s ub s i s tence. — lodging. — and
honorarium — incurred — by — members — »f — xisiting
committees, other bona fide reprcsentatixcs. and
members of the staff of accrediting organizations.

1561

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PROPOSED RULES

This Rule permit s payment of only those expen s es
for which an institution is customarily invoiced by
an accrediting organization following a visit.

(b) The institution may pay from state funds the
required annual dues of the Southern Association
of Colleges and Schools, and s uch in s titutional
association — membership — d«es — as — the board of
trustees deems to benefit the institution. — Regard
ing member s hip dues in the Southern Association,
this Rule applie s to annual dues of corre s pondent s
and candidate s for member s hip, a s well as accred
itcd members.

(c) The institution may also pay from state funds
the fees for accrediting individual program s of
fcrcd by the institution where such an accreditation
is — afl — official — prerequi s ite — for the — licensing of
graduates of such programs by legally designated
professional or occupational licensing boards or
agencies in the State of North Carolina. — State
funds may not be used to pay the accreditation
costs of any other organizations or agencies.

Statutory Authority G.S. 115D-5: 115D-55.

.0305 EXPENDITURE OF STATE FUNDS:
POSTAGE MACHINES

State funds may be used to rent postage machines
in accordance with the procedures set forth in the
department's Accounting Procedures Manual.

If the volume of mail justifies the rental of a
postage machine, the cost of the rental fee for the
machine may be paid from s tate fund s and charged
to budget subhead 7120. po s tage.

Statuton,- Authorit^■ G.S. 115D-5: I15D-54.

.0306 EXPENDITURE OF STATE FUNDS:
GREETING CARDS

The purchase of greeting cards and also the
postage to mail them arc not proper expenditures
from state funds.

Statutory- Authority' G.S. 115D-5: 115D-54.

.0307 EXPENDITURE OF STATE FUNDS:
CERTIFICATE COSTS

State funds may be used to obtain certificates,
diplomas, or degree forms m accordance with
procedures set forth in the department's Account-
ing Procedures Manual.

Printed certificates, diplomas, or degree s pro -
duced through printshops at the institution may be
paid from state funds available for Supplies and

Materials. If these — certificates. — diplomas. — of

degrees are ordered from a commercial printshop.

the cost can be a part of the graduation fe e
charged to the student.

Statutory Authority G.S. 115D-5; 115D-39.

.0309 EXPENDITURE OF STATE FUNDS:
TRAVEL AND ALLOWANCES

Travel regulations governing travel for institu
tional college personnel are published in section
number — five — ©f the department's Accounting
Procedures Manual, published by the State Board.
These Regulations can be obtained from the De
partment of Community Colleges, Raleigh, North
Carolina.

Statutory Authority G.S. 115D-5; 1150-54.

.0310 LIVE PROJECTS

(a) Live projects are defined as:

(1) educational programs in which students,
as part of their educational experiences,
repair or remodel equipment not owned
by the institution college ; or

(2) educational programs that produce
goods that are sold or services for
which charges are made, such goods or
services being the normal and necessary
product of learning activities of stu-
dents.

(b) In the case of (a)(1) of this Rule, the owner
of the equipment must supply or pay for all parts
required. In the case of (a)(2) of this Rule, the
following regulations apply:

(1) Where federal programs such as CETA
are involved, federal regulations do not
permit goods to be sold. In such pro-
grams, goods produced may be used for
the benefit of the in s titution college or
donated to another non-profit charitable
or educational agency or institution.

(2) For live projects that involve the pur-
chase of equipment from the state or
federal surplus property agency, the
repair of this equipment and its sale as
surplus under the regulations of the
State Division of Purchase and Con-
tract, the proceeds of such sales shall
be deposited with the State Board and
credited to the equipment budget of the
institution college .

(3) In other programs that fall under the
above definition of live projects:

(A) The local board of trustees shall
approve regulations, consistent with
state laws and regulations, covering

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1562

PROPOSED RULES

the disposal of goods and services,
charges made, etc.

(B) The local board of trustees shall
provide that the receipts be deposited
to the State Treasurer (unless a "spe-
cial local" fund account arrangement
has been worked out in keeping with
regulations of the department). Re-
ceipts deposited to the State Treasurer
under this provision shall be allotted
back to the institution college for
expenditures during the same fiscal
year.

(C) Where a "special local" fund arrange-
ment is set up as provided in (b)(3)(B)
of this Rule, all costs made necessary
because goods and/ or services are
produced and then sold shall be paid
from the "special local" account that
receives the income. This includes
materials used in producing the goods
and services, extra personnel required
to serve customers, specialized equip-
ment that would not otherwise be
required for instruction alone, and
other costs directly related to a live
project as distinguished from an in-
structional program that does not
produce income. Detailed records
must be maintained on the special
local fund account in order that peri-
odic financial statements may be
prepared and a complete audit of the
account made after the close of the
fiscal year.

(D) Where a "special local" fund arrange-
ment is set up as provided in (b)(3)(B)
of this Rule, the local board of trust-
ees shall adopt regulations, consistent
with procedures established by the
Department of Community College
department's Accounting Procedures
Manual, which set forth the purposes
for which funds from the special local
fund [in excess of those required
under part fb)(3)(C) of this Rule] may
be used. Such funds shall not be used
to supplement regular salaries of
permanent employees whose base
salaries are paid from state or local
appropriations.

(c) The clientele served in providing clinical
experience for students by carrying on live projects
shall be limited to students and employees in the
system so far as possible. Where, however.

outside clients become necessary in order to
provide enough experience to carry out educational
programs, clients should be selected from the
general public on the basis of standing criteria
adopted and published by the institution college ,
not inconsistent with State Board policies.

(d) The above regulations, except those under
(b)(2) of this Rule, do not apply to the disposal of
any state owned equipment, which must be de-
clared surplus and sold by the State Board.

Statutory: Authority G.S. 115D-4; 115D-54; P.L.
97-300.

.0311 HANDLING OVERHEAD RECEIPTS
AND ALLOWANCES

Funds accruing to an institution a college as
federal allowances, including overhead allowances
on federal grant projects, veteran student process-
ing per capita allowances, work study processing
allowances, and similar items and similar allow-
ances derived from private grant projects, shall be
deposited in a special local fund to be used by the
institution college to fund special projects proposed
by the in s titution college and approved by the State
System President consistent with provisions set
forth in the department's Accounting Procedures
Manual.

Statutory Authority G.S. 115D-5; 115D-54.

.0312 BOOKSTORE: VENDING MACHINE

(a) The rules governing the expenditure of funds
derived from bookstore sales by community colleg-
es shall be consistent with the mission and purpose
of the community college system. The guidelines
for budgeting, accounting, and expenditure of
funds generated through the bookstore shall be
published in the department's Accounting Proce-
dures Manual.

(b) The board of trustees of each institution
college shall adopt local policies consistent with
G.S. 1 15D 58.13 these guidelines for the budget-
ing, accounting and expenditure of funds generated
through book s tore operating profits and vending
machines and other convenience concession activi-
ties.

Statutory Authority G.S. 115D-58.13.

.0313 ACQUISITION OF AUTOMATED
DATA PROCESSING (ADP)
RESOURCES

All requests to purchase, lease, or rent automated
data processing resources (hardware, software, or

1563

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PROPOSED RULES

services) from any public funds shall be submitted
to the department for approval. Forms and in-
structions for the implementation of this Rule shall
be developed by the department and set forth in
the department's Accounting Procedures Manual.

{V) In submitting a request, the in s titution

sheik

{et) anticipate and document through plan

ning the need for ADP resources;

ification and an evaluation

prepare spec

plan for procurement selection; and

evaluate proposals and bids.

(3^ During the initial phase of the approval

process, the in a titution shall contact the
department and arrange a conference in
order — to — obtain — detailed — in s truction s
which — must be followed through the
acquisition process.

i^ tfl — addition — the — conference — may — als©

include representatives of the MIS Divi
sion of the Department of Admini s tra
tion, the Division of Purcha s e and Con
tract, and the State Auditor. — In s ome
cases, when the acqu is ition cost i s rcla
lively low and/or replacements arc being
requested the conference may be waived
at the department' s option.

Statutory Authority G.S. 115D-5; 143-49.

.0314 DISTRIBUTION OF FEDERAL

VOCATIONAL EDUCATION FUNDS

State Board of Cc

-GeHt

and State

oT Lommunity colleges
Board of Educat i on policie s for di s tributing Feder-
al funds allocated to the state from the Carl D.
Perkins Vocational and Applied Technology
Education Act shall Vocational Education Act s are
as follows:

{-!-) The following funds to be distributed

one-third to the community college sys-
tem and two-thirds to the public school
system and in accordance with the ap-
proved State Plan.

W-

part A

(b^ part A

part A

{^ part A

fe) part A

disadvantaged;

handicapped;
s ubpart 2;

subpart 3;

subpart 4 ;

(33 Part A. Consumer and homcmalcing

funds. — 100 percent to be used in the

public school s y s tem;
(^) Part A. Post secondary set a s ide. — 1-00

percent to Community College System;
(4) In the event that the community college

system or the public school system is

unable to use the federal funds as provid-
ed for in this Rule as determined by the
State System President and the State
Superintendent, the excess funds may be
used by the other system as needed.

Statutory Authority G.S. 115D-5; 115D-31; P.L.
90-576.

.0317 CATEGORIES OF FULL-TIME
EQUIVALENTS

{et) — The term "FTE" means the actual FTE
developed from student membership hour s reported
on an appropriat e form for a given — quarter.
"Average annual FTE" means the average of the
s ummer, — f&ti-, — winter. — and — s pring — FTE or the
average FTE developed over an entire s chool year.
The average annual FTE is published yearly in the
Annual Enrollment Report. "Four quarter average
FTE" i s the average of the FTE developed in any
consecutive four quarter period. — The FTE s y s tem
provides the basic information used to calculate the
management FTE listed in the following para
graph s .

ibj — The budget full time equivalent (B/FTE) i s
u s ed to prepare the operating budget and to pro -
vide for an equitable di s tribution of the operating
funds allocated by the State Board to institutions.

(c) The equipment full time equivalent (E/FTE)
i s u s ed to prepare the equipment budget and to
provide for an equitable distribution of the equip
mcnt funds allocated by the State Board to the
institutions.

i4j — The library full time equivalent (L/FTE) is
used to prepare the library budget to provide for
an equitable di s tribution of library funds that arc
allocated for the purchase of library books and
audiovi s ual materials.

(c) The credit hour full time equivalent (H/FTE)
is used in furnishing data to the North Carolina
Commission on Higher Education Facilitie s and
the Univer si ty of North Carolina.

The — construct i on — full ti

leftt

me — equiva

(C/FTE) is used to determine construction priori -
tie s and in s titutional eligibility for federal and state
construction funds for the institutions.

Note: Substance of this Rule is contained in 23
NCAC lA .0001.

Statutory Authority G.S. 115D-5; 115D-54.

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PROPOSED RULES

.0318 EQUIPMENT BUDGET REQUESTS: DISTRIBUTION OF FUNDS

(a) The State Board shall approve budget requests and the allotment of funds to institutions colleges for
equipment upon recommendation by the Department, department.
fte^ — The budget reque s t s and fund di s tributions to in s titutions shall be based on the following factors:

^4-) Determine an equipment full time equivalent (E/FTE) for each institution by applying the following

ratios to the average full time equivalents for the preceding calendar year, and adding the products

to obtain a sum for each institution:

fA) — college transfer —
ifif) — general education

-&tM

-Qri&

f€4 — technical —
{&) — vocational

-rOe

-^r^

fE^ — occupational extension

-&t55

-&t05

{¥) — other regular budget extension

(3-) Determ i ne the gross equipment funding entitlement for each institution by applying the E/FTE to

the following funding table:

Institution's
E/FTE Size

16 4 to

^&3-

-^SQ-

$2 4 6,000.00

$2 4 6,000.00 plus

$1,500.00 per E/FTE above ^65

251 to

-^SQ-

$375,000.00 plus
$557,000.00 plus

$1,820.00 per E/FTE above 3§G

-^^

-t€>-

-SQO-

$2. 1 8 0.00 per E/FTE above ?SQ

■SQi

tOQO-

— $88 4 ,000.00 plu s
$1,79 4 ,000.00 plus

$1, 8 20.00 per E/FTE above §00

$1,220.00 per E/FTE above

T0G4 — te-

h^oe-

^QQQ

t504

-te-

hQQQ-

$2, 4 4 ,000.00 plu s
$2,86 4 ,000.00 plu s

$920.00 per E/FTE above 1-^00

$620.00 per E/FTE above 3^009

tW4 — &n4-

abov(

0) The budget requests and allotment of funds by institution shall be based on the following:

fA-) — Allot to each institution a base allotment of twenty thousand dollars ($20,000) plus thirty dollars

($30.00) per E/FTE in excess of 163 E/FTE.
fB) — Allot to each institution the net entitlement amount which is determined by:

fB-

Subtracting from the gross entitlement for each institution the sum of the latest June 30 major
equipment inventory, the unexpended equipment allotment from the prior year June 30 Form
112 report, except fund s allotted for accumulated depreciation in the prior year, and the
current year entitlement allotment:

tti3 Make adjustments — for prex'ious loans to other institutions, transfers between book and

equipment budgets, and for special allotments made prior to June 30. 1980.
{G^ — Allot to each institution the accumulated depreciation amount which is determined by ascertaining
the accumulated major equipment inventor)' depreciation amount on June 30. 1983; subtracting
each allotment for depreciation thereafter and adding each fiscal year's annual depreciation
amount.
(©) — In the event that appropriation s are not sufficient to fully fund Parts (A). (B). and (C) of this
Subparagraph. Part (A) shall be funded first. — The remaining funds would be used to fund Parts
(B) and (C) with each institution receiving its pro rata share of funds set aside for allotment for
entitlement and accumulated depreciation. — These remaining funds after the base allotment s have
been made will be allotted for net entitlement and for accumulated depreciation as determined by
adding the total net entitlement needs and the total accumulated depreciation ne^jds and percenting
each to the grand total.
(b) Funds appropriated to the State Board for equipment shall be allocated to the colleges in accordance with
formulas and procedures established by the State Board. Formulas and procedures to allocate funds shall be
published in the department's Accounting Procedures Manual.

Skitmon- Aurhorin- G.S. 115D-5: 115D-55.

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PROPOSED RULES

.0319 ALLOTMENT PROCEDURES FOR HUMAN RESOURCES DEVELOPMENT

fa) The appropriation provided by the General A s sembly for the support of the HRD program shall be
divided into three separate and equal funds, allocated in accordance with formulas and procedures established
by the State Board. Formulas and procedures shall be published in the department's Accounting Procedures
Manual.

Fund.

Each

{\) One third of the appropriation s hall be designated the "Program Maintenance

continuing HRD program shall receive annually one equal share of the Program Maintenance Fund.

(3) One third of the appropriation shall be designated the "FTE Fund." Each continuing HRD program

s hall receive annually from thi s fund an amount proportionate to its share of the total HRD FTE
accumulated by all participating in s titution s .

f^) One third of the appropriation shall be de s ignated the "Performance Fund." Each continuing HRD

program shall receive annually from thi s fund an amount proportionate to its share of the sum of
all positive earnback indexes accumulated by all participating in s titutions. — Programs generating a
negative carnbaok index shall receive no portion of the performance funds.
(b) An earnback index for each HRD program shall be computed in accordance with the following formula:

[Aggregate

[Post Training 3X

Aggregate

Po s t Training

[Aggregate

[Pre Training 3X

Aggregate

Pre Training

[Income

Public

[Income

-i

Public

A ss i s tance

Assistance

Aggregate

Training Co s t s

(c) No continuing HRD program shall receive a funding increase or doerease of more than twenty thousand
dollars ($20,000) from one year to the next. — Any funds which might be earned by a program in excess of
the permissible increase s hall be reverted to the Performance Fund for redi s tribution; s ufficient fund s s hall
be added to the allotment of any program from the Performance Fund to prevent an impermissible decrease
in funding.

{4r) — No HRD program which generates a negative earnback index for two consecutive fiscal years shall
receive funding for the next year without special approval of the State Board (Refer to the HRD Program
Procedures Manual available after August, 19 8 1 for additional s pecific information regarding earnback and
other pertinent areas).

Statutory Authority G.S. 1150-5.

.0320 LIBRARY BOOK FUNDING SYSTEM AND BUDGETARY APPLICATION

(a) The state board shall approve budget requests and the provide allotment of funds to institutions colleges
for library books and non-equipment learning resources upon recommendation of the department.

(b) The budget requests and fund allotments to in s titution s colleges shall be based on the following factors:
(1) Determine the library full-time equivalent (L/FTE) for each institution college by applying the

following ratios to the average budget full-time equivalents for the preced i ng calendar current
budget year and adding the products to obtain a sum for each institution college :

(A) college transfer curriculum 2.00 1 .00

(B) general education occupational -1-tW ^50

-&t55

(E) — regular budget extension

(2) Determine each institution's college's standard book entitlement by computing the following:

(A) 4-§ 20 volumes per L/FTE up to 1,000 L/FTE with a minimum of 5,000 volumes per institution;
and

(B) 4« 14 volumes per L/FTE over 1,000 L/FTE.

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1566

PROPOSED RULES

( 1 ) adding the unexpended library book allotment from the prior year June 30 Form 1 1 2 Report 2-12
and the current year library book allotment except Subparagraph (1) of Paragraph (d) of this Rule
(funds for maintenance of existing collections);

(2) dividing this sum by the latest national average cost per book; and

(3) adding the equivalent acquisitions and availabilities of Part (2) of Paragraph (a) of this Rule to the
latest June 30 library book inventory.

(d) Allotments will be made to in s titutions colleges based on the following:

( 1 ) Maintenance of Existing Collections. The greater often thousand dollars ($10,000) or 10 percent
of the latest equivalent book inventory times the latest national average cost per volume;
Expenditure of the maintenance fund shall not increase the equivalent inventory of any institution
college ;

(2) Expansion of Existing Collection. The expansion allotment for each institution college shall be the
product of the difference between the book entitlement and the equivalent book inventory, and the
latest national average cost per volume;

(3) If appropriations are not sufficient to make full allotments, each institution college shall receive a
pro rata portion of 50 percent of the maintenance allotment and a pro rata portion of 50 percent
of the expansion allotment.

(e) These factors will be used as a basis for appropriation requests to the General Assembly.

Statutory' Authorit)' G.S. I15D-5; 1150-31.

.0321 PAYROLL DEDUCTIONS

In s titutions Colleges are authorized to establish
voluntaiy payroll deduction plans for the follow
college employees. Allowable deductions are

outlined in the department's Accounting Proce-
dures Manual.

f}-) premiums for any type of group insur

anoc established and authorized by the
law s of the state;

<a4

jf the

amounts authorized by members or tnc
State Employ ee ' s Credit Union and local
teacher' s — credit — union to — be — deposited
with such organizations;
{M loans made to employees by credit un

ions;

f4^

defined

charitable — organizations — as — detined — m
Sect i on 501(c) (3) of the Internal Reve
nue Code approved by the local board of
trustees s ubject to rule s and regulations
adopted by the director of budget; and

{%] Payroll Savings Plan for United States

Savings — Bonds — as — authorized — m — G.S.
1 4 3 30 4 .

Tht

le institution's finance officer i s also authorized
to enter into annual contract s , with employees of
the in s titution, which authorize the reduction of
salarie s to provide for the purchase of annuity or
retirement income contracts provided that such
action has been approved by the board of trustees
and otherwise conform s to the provisions of G.S.
115D 25.

Statutory Authority G.S. 115D-5; 1150-22;
115D-25: 143-3.3; 143-304.

.0323 REPORTING OF STUDENT HOURS
IN MEMBERSHIP/CURRICULUM
CLASSES

(a) Academic Quarter. The academic quarter
for all credit courses shall normally be not less
than 11 school weeks or 55 class days, whichever
is greater. The academic quarter should be de-
signed so that all classes may be scheduled to
include the number of instructional hours shown in
the college catalog and reported for FTE purposes.
Instructional hours include scheduled class and
laboratory sessions as well as examination ses-
sions. Alternate lengths for quarters or courses
may be used as long as credit hours are assigned
consistent with Rule 23 NCAC 2E .0104 and as
long as membership hours are reported consistent
with the other provisions of this Rule.

(b) Regularly-Scheduled Classes.

(1) A class is regularly scheduled if it
meets all of the following criteria:

(A) assigned definite beginning and end-
ing time;

(B) specific days the class meets is prede-
termined;

(D) class hours assigned consistent with
college catalog and t^ curriculum
standard requirements;

1567

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PROPOSED RULES

(E) identified class time and dates the
same for all students registered for the
class (excluding clinical/cooperative);
(i) Classes which have a regularly
scheduled lecture section and a
non-regularly scheduled laborato-
ry section will satisfy this criteria.
The census date (20 percent point)
must be determined from the
regularly scheduled portion of the
class. Verification of student
participation in the laboratory
section of the class must be avail-
able for review,
(ii) a student is considered absent if
that student fee did not attend
during the specified times or days
the class was scheduled to meet.

(2) A student is considered to be in class
membership when the student meets all
the following criteria:

(A) enrolled as evidenced by payment of
the applicable tuition and fees, or
obtained a waiver as defined in G.S.
115D-5(b); Paragraph (a) of Rule
.0202 of this Subchapter;

(B) attended one or more classes prior to
or on the 20 percent point in the
class;

(3) Student Membership Hour. A student
membership hour is one hour of sched-
uled class, shop or laboratory for which
the student is enrolled. A college shall
provide a minimum of 50 minutes of
instruction for each scheduled class
hour. A college may not report more
hours per student than the number of
class hours scheduled in the college
catalog or other official college docu-
ments.

(4) Calculation of Student Membership
Hours for Regularly Scheduled Classes.
Student membership hours are obtained
by multiplying the number of students
in membership at the 20 percent point
in the class by the total number of
hours the class is scheduled to meet for
the quarter as stated in the catalog or
other official college documents.

(5) Maintenance of Records of Student
Membership Hours. Accurate atten-
dance records must be maintained for

each class through the 20 percent point
of the class. Colleges are encouraged
to maintain attendance records for the
duration of all classes. Attendance
records are to be signed by the instruc-
tor or lead instructor, verifying their
accuracy, and are to be maintained by
the college until released from all audits
(see the Public Records Retention and
Disposition Schedule for Institutions in
the Community College System).
Student membership hours shall be
summarized in the institution's Class
Report and certified by the president or
fe« designee. For classes identified as
non-traditional delivery (see Subpara-
graph (e)(1) of this Rule for additional
information), documentation of student
contact prior to the 20 percent point
must be maintained in the same manner
as the attendance records mentioned in
this Rule.
(c) Non-Regularly Scheduled Classes.
(1) A non-regularly scheduled class may
include any or all of the following:

(A) a class where a definitive beginning
and ending time is not determined;

(B) a class offered in a learning laborato-
ry type setting (see Subparagraph
(b)(6) of Rule .0324 of this Subchap-
ter for definition of learning laborato-
ry);

(C) a class self-paced in that the student
progresses through the instructional
materials at his /her own pace, and can
complete the courses as soon as
he /she has successfully met the educa-
tional objectives. Classes offered as
independent study are generally of-
fered in this manner;

(D) a class in which a student may enroll
during the initial college registration
period or in which the student may be
permitted to enroll at any time during
the quarter;

(E) any class not meeting all criteria for a
regularly scheduled class, as shown in
Subparagraph (b)(1) of this Rule, is
considered to be a non-regularly
scheduled class for reporting purpos-
es. Note classes defined as
non-traditional (see Paragraph (e) of
this Rule) which are identified as a
separate student hour reporting cate-

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NORTH CAROLINA REGISTER

November 2, 1992

1568

PROPOSED RULES

gory and are not subject to the provi-
sions in Paragraph (c).

(2) Definition of Student Membership. A
student is considered to be in class
membership when the student meets the
following criteria:

(A) enrolled as evidenced by payment of
the applicable tuition and fees, or
obtained a waiver as defined in Para-
graph (a) of Rule .0202 of this Sub-
chapter; and

(B) attended one or more classes.

(3) Definition of a Student Contact Hour.
For non-regularly scheduled classes,
student contact hours, actual hours of
student attendance in a class, shop, or
lab are to be reported for each student
determined to be in membership. Sixty
minutes shall constitute an hour.

(4) Calculation of Student Contact Hours
for Non-Regularly Scheduled Classes.
For these classes, actual time of class
attendance is to be reported; 60 minutes
shall constitute an hour. Student con-
tact hours for these classes are the sum
of all the hours of actual student atten-
dance in a class in a given quarter.

(5) Maintenance of Records of Student
Contact Hours. Accurate attendance
records must be maintained for each
class of the nature described in this
Rule through the entire quarter. Atten-
dance records are to be signed by the
instructor or lead instructor, verifying
their accuracy, and are to be maintained
by the college until released from all
audits (see the Public Records Retention
and Disposition Schedule for Institu-
tions in the Community College Sys-
tem). Student contact hours shall be
summarized in the Institution's Class
Report and certified by the president or
Im designee.

(d) Skills Laboratory or Computer Tutorial
Laboratory. Individualized instructional laborato-
ries are similar to learning laboratories (see Sub-
paragraph (b)(6) of Rule .0324 of this Subchapter)
except the participants are curriculum students.
Skills labs or computer tutorial labs are remedi-
al/developmental in nature and intended for stu-
dents who are experiencing academic difficulty in
a particular curriculum course. A skills laboratory
instructor must be qualified in the single-subject
area of the skills laboratory. A computer tutorial
laboratory coordinator need not be qualified in any

of the subject area(s) provided in a computer
tutorial laboratory. Student contact hours may be
reported for budget/FTE when students are re-
quired by their instructor to attend either of the
laboratories for remedial/developmental work and
when the skills laboratory instructors or computer
tutorial coordinators are paid with curriculum
instructional funds.

(1) Documentation of instructor referral
must be maintained for auditing purpos-
es. Maintain documentation until re-
leased by audit.

(2) Homework assignments are not permit-
ted to be reported for budget/FTE.
[Note Rule 23 NCAC 2D .0325(a).]

(3) Calculation of Student Contact Hours
for Skills Laboratory or Computer
Tutorial Laboratory. For these classes,
actual time of class attendance is to be
reported; 60 minutes shall constitute an
hour. Student hours generated for these
types of classes are the sum of all the
hours of actual student attendance in a
class in a given quarter.

(e) Classes Identified as Curriculum

Non-Traditional Delivery.

(1) Definition. Due to the methodology by
which instruction is delivered,
non-traditional delivery classes are not
consistent with the definitions of regu-
larly scheduled or non-regularly sched-
uled classes described in this Rule.
Non-traditional delivery classes must be
offered through media such as radio,
television, and other media as well as
through correspondence or newspapers.
The instruction delivered is
pre-structured into identifiable units.
Non-traditional delivery classes do not
include classes identified as independent
study which are not media based or are
not correspondence or newspaper
based.

(2) For those classes identified as
non-traditional delivery, student atten-
dance in class or in an orientation
session, submission of a written assign-
ment or submission of an examination,
is the basis for the determination of
class membership at the 20 percent
point of the class. Student membership
hours earned in non-traditional delivery
classes shall be calculated by multiply-
ing the number of students in member-
ship, as determined in the prior sen-

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PROPOSED RULES

tence, times the number of hours as-
signed to the class in official college
documents. For these classes, the
number of hours assigned must be
consistent with the credit hours assigned
according to Rule 23 NCAC 2E .0104,
as well as the appropriate curriculum
standard .
(f) Curriculum Student Work Experience and
Clinical Practice. The following criteria apply to
the reporting guidelines for students enrolled in
curriculum work experience and clinical practice
courses, exclusive of in-plant training as specified
in Rule 23 NCAC 2E .0402. Examples of student
work experience include cooperative education,
practicums, and internships. Clinical practice
refers to work experience in health occupation
programs.

(1) Student membership hours for student
work experience and clinical practice
shall not generate budget/FTE without
prior approval by the department of
such activities through the appropriate
curriculum standard.

(2) Work Experience. Work experience
for curriculum courses shall earn bud-
get/FTE at the 100 percent rate of
assigned work experience hours and
shall not exceed a maximum of 220
membership hours per student per
quarter.

(A) These classes must be coordinated by
college personnel paid with college
instructional funds and may be located
in one or more sites.

(B) These classes must be specified in the
approved curriculum of the college
consistent with the applicable curricu-
lum standard.

(C) Formal or informal apprenticeship
on-the-job training activities of a
cooperative skill training program
funded under a special project alloca-
tion shall not earn budget/FTE.
Classroom instruction funded with
college regular budget instructional
dollars for related or supplemental
instruction as required by formal or
informal apprenticeship programs
shall earn budget/FTE.

(3) Clinical Practice. Curriculum clinical
practice, as defined in Rule 23 NCAC
2E .0104, refers to clinical experience
in health occupation programs which
shall earn budget/FTE at the 100 per-

cent rate for student membership hours.
TTie applicable classes must be consis-
tent with the curriculum standards
policy as noted in Paragraph (a) of Rule
23 NCAC 2E .0203. The maximum
membership hours in a clinical experi-
ence which can be reported per student
in a given quarter is 440. These classes
must be supervised by college instruc-
tors qualified to teach in the particular
program and who are paid with college
instructional funds. These classes may
be located in one or more sites.

Statutory^ Authority G.S. 115D-5; 115D-31:
U5D-58.5.

.0324 REPT/STU HRS/MEMBERSm?/
EXTENSION (NON-CREDIT)
CLASSES

(a) Regularly Scheduled Classes.

(1) Definition of Regularly Scheduled
Class. A class is considered to be
regularly scheduled if it meets all of the
following criteria:

(A) assigned definite beginning and end-
ing time;

(B) specific predetermined days and time
the class meets;

(D) class hours assigned consistent with
official college documents;

(E) identified class time and dates the
same for all students registered for the
class (excluding clinical/work experi-
ence);

(i) Classes which have a regularly
scheduled lecture section and a
non-regularly scheduled laborato-
ry section will satisfy the criteria.
The census date (50 20 percent
point) must be determined from
the regularly scheduled portion of
the class. Verification of student
participation in the laboratory
section of the class must be avail-
able for review.

(ii) a student considered absent if he
that student did not attend during
the specified times or days the
class was scheduled to meet.

(2) Definition of Student Membership. A
student is considered to be in class

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PROPOSED RULES

membership when the student meets all
the following criteria:

(A) enrolled as evidenced by payment of
the applicable registration fees, or
obtained a waiver as defined in Para-
graph (a) of Rule .0203 of this Sub-
chapter;

(B) attended at least 50 percent of the one
or more classes heW prior to or on
the §0 20 percent point in the class;
and

(3) Student Membership Hour. A student
membership hour is one hour of sched-
uled class, shop or laboratory for which
the student is enrolled. A college shall
provide a minimum of 50 minutes of
instruction for each scheduled class
hour. A college may not report more
hours per student than the number of
class hours scheduled in official college
documents. Colleges may not report
more hours per student, excluding
non-traditional classes, than the number
of hours specified in the instructor's
contract.

(4) Calculation of Student Membership
Hours for Regularly Scheduled Classes.
Student membership hours are obtained
by multiplying the number of students
in membership at the 50 20 percent
point in the class by the total number of
hours the class is scheduled to meet for
the quarter as stated in official college
documents. Due to the unique funding
formula for Human Resource Develop-
ment (HRD) classes, all HRD classes
must be regularly scheduled and report-
ed consistent with the calculation meth-
od noted in Subparagraph (a)(4) of this
Rule.

(5) Maintenance of Records of Student
Membership Hours. Accurate atten-
dance records must be maintained for
each class throughout the entire class or
quarter. Attendance records are to be
signed by the instructor or lead instruc-
tor, verifying their accuracy, and are to
be maintained by the college until
released from all audits as provided in
the Public Records Retention and Dis-
position Schedule for Institutions in the
Community College System. Student

membership hours shall be summarized
in the Institution's Class Report and
certified by the president or his
designee. For classes identified as
non-traditional delivery, (see Paragraph
(c) of this Rule) documentation of
student contact prior to the §0 20 per-
cent point must be maintained in the
same manner as the attendance records
mentioned in this Rule.
(b) Non-Regularly Scheduled Classes.

(1) Definition of Non-Regularly Scheduled
Class. A non-regularly scheduled class
may include any or all of the following:

(A) a class where a definitive beginning
and ending time is not determined;

(B) a class offered in a learning laborato-
ry type setting (see Subparagraph
(b)(6) of this Rule for defmition of
learning laboratory);

(D) a class in which a student may enroll
during the initial college registration
period or in which a student may be
permitted to enroll at any time during
the quarter; or

(E) any class not meeting all criteria for a
regularly scheduled class as shown in
Subparagraph (a)(1) of Rule .0324 of
this Subchapter, is considered to be a
non-regularly scheduled class for
reporting purposes;

(F) note classes defined as non-traditional
(see Paragraph (c) of this Rule) which
are identified as a separate student
hour reporting category and are not
subject to the provisions in Paragraph
(b).'

(2) Definition of Student Membership. A
student is considered to be in class
membership when the student meets the
following criteria:

(A) enrolled as evidenced by payment of
the applicable registration fees, or
obtained a waiver as defined in Para-
graph (a) of Rule .0203 of this Sub-
chapter;

(B) attended one or more classes.

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(3) Definition of Student Contact Hour. A
student contact hour is one hour of
student attendance in a class for which
the student is in membership as defined
in Subparagraph (b)(2) of this Rule.
Sixty minutes shall constitute an hour.

(5) Maintenance of Records of Student
Contact Hours. Accurate attendance
records must be maintained for each
class throughout the entire class or
quarter. Attendance records shall be
signed by the instructor or lead instruc-
tor, verifying their accuracy, and are to
be maintained by the college until
released from all audits as provided in
the Public Records Retention and Dis-
position Schedule for Institutions in the
Community College System. Student
membership hours shall be summarized
in the Institution's Class Report and
certified by the president or his
designee. For classes identified as
non-traditional delivery, (see Paragraph
(c) of this Rule), documentation of
student contact prior to the 50 20 per-
cent point must be maintained in the
same manner as the attendance records
mentioned in this Rule.

(6) Learning Laboratory. Learning labora-
tory programs consist of self-instruction
using programmed text, audio-visual
equipment, and other self-instructional
materials. A learning laboratory coor-
dinator has the function of bringing the
instructional media and the student
together on the basis of objective and
subjective evaluation and of counseling,
supervising, and encouraging persons
working in the laboratory. Contact
hours are to be calculated as noted in
Subparagraph (b)(4) of this Rule.

Non-Traditional Delivery.

(I) Definition. Due to the methodology by
which instruction is delivered,
non-traditional delivery classes are not
consistent with the definitions of regu-

larly scheduled or non-regularly sched-
uled classes described in this Rule.
Non-traditional delivery classes may be
offered through media such as radio,
television and other media as well as
through correspondence or newspapers.
The instruction delivered is
pre-structured into identifiable units.
Non-traditional delivery classes do not
include classes identified as independent
study which are not media based or are
not correspondence or newspaper
based.
(2) For those classes identified as
non-traditional delivery, student atten-
dance in class or in an orientation
session, submission of a written assign-
ment or a submission of examination is
the basis for the determination of class
membership at the 50 20 percent point
of the class. Student membership hours
in such classes shall be calculated by
multiplying the number of students
enrolled in the class times the number
of instructional hours delivered which is
determined as follows:

(A) determine the number of hours of
instruction delivered via
non-traditional delivery; and

(B) add the number of hours of class
meetings, review sessions, etc.,

(C) for those non-traditional continuing
education classes which are approved
by a local college staff review com-
mittee and the Director of Continuing
Education Services for the depart-
ment, additional hours above the level
noted in Subparagraphs (c)(2)(A) and
(B) in this Rule may be approved
commensurate with course content.

(d) Extension Student Work Experience and
Clinical Practice. The following criteria apply to
the reporting guidelines for students enrolled in
extension work experience and clinical practice
courses, exclusive of in-plant training as specified
in Rule 23 NCAC 2E .0402. To be eligible for
approval, these work experience or clinical prac-
tice courses must be required by an external
agency or accrediting body. Examples of student
work experience include cooperative education,
practicums, and internships.

(1) Student membership hours for student
work experience and clinical practice
shall not generate budget FTE without
prior approval of such activities by the

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PROPOSED RULES

department on forms provided for this
purpose. Approval of student work
experience and clinical practice ap-
proved prior to November 1, 1983 by
the department must be resubmitted for
reapproval on the forms provided for
this purpose. When the number of
approved student work experience
membership hours increases by more
than 20 percent per course, a new
approval form must be submitted.

(2) Work Experience. Work experience
for extension courses shall earn bud-
get/FTE at the 100 percent rate for
student membership hours, as deter-
mined in Subparagraph (a)(3) of this
Rule, and shall not exceed a maximum
of 220 membership hours per student
per quarter.

(A) These classes must be coordinated by
college personnel paid with college
instructional funds and may be located
in one or more sites.

(B) Formal or informal apprenticeship
on-the-job training activities of a
cooperative skill training program
funded under a special project alloca-
tion shall not earn budget/FTE.
Classroom instruction funded with
regular budget instructional dollars for
related or supplemental instruction as
required by formal or informal ap-
prenticeship programs shall earn
budget/FTE.

(3) Clinical Practice. Clinical practice
refers to clinical experience in health
occupation courses which shall earn
budget/FTE at the 1(30 percent rate for
student membership hours, as deter-
mined in Subparagraph (a)(3) of this
Rule, and shall not exceed a maximum
of 220 membership hours per student
per quarter unless North Carolina licen-
sure or program accreditation standards
require additional hours. In such cases,
work activity hours shall earn bud-
get/FTE at the 100 percent rate in
accordance with licensure or program
accreditation standards up to a nia.xi-
mum of 440 membership hours per
student per quarter. These classes must
be supervised by college instructors
qualified to teach in the particular
program and who are paid with college

instructional funds. These classes may
be located in one or more sites.

Statutory Authority G.S. 115D-5: 115D-31;
U5D-58.5.

.0325 LIMITATION IN REPORTING

STUDENT MEMBERSfflP HOURS

(a) Student hours may not be reported for
budget/FTE which result from:

(1) Conferences or visits. General types of
meetings usually of one or more day's
duration, attended by a fairly large
number of people. A conference or
visit may have a central theme, but is
loosely structured to cover a wide range
of topics. The emphasis is on prepared
presentations by authoritative speakers,
although division into small group
sessions for discussion purposes is often
a related activity.

(2) Seminars or Meetings. A small group
of people meeting primarily for discus-
sion under the direction of a leader or
resource person or persons. Seminars
and meetings are generally one-time
offerings even though they may contin-
ue for more than one day.

(3) Programs of a service nature rather
than instructional classes.

(4) Enrollment of high school students not
in compliance with 23 NCAC 2C .0301
and 2C .0305.

(5) Unsupervised classes.

(6) Proficiency or challenge exams except
that the actual time required to take the
exam may be counted in membership;
students must be registered in the class
consistent with Paragraph (a) of Rules
.0202 and .0203 of this Subchapter.

(7) Homework assignments.

(8) Inter-institutional or intramural sports
activities including those of prison
inmates.

(b) Self-supporting classes are not to be reported
for regular budget purposes (those classes support-
ed by student fees or a class in which instruction
is provided gratis); all recreational extension
classes fall in this category.

(c) Student clas s hour s for clas s s ize project s in
which in s tructional s alarie s are funded by Title II
of the Job Training Partnership Act (JTPA) shall
not receive full FTE funding, but s hall rcceixe
administrati\o cost reimbursement. The sixty forty
rule docs not apply to JTPA cla ss s ize projects.

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PROPOSED RULES

il)

Occupational extension instruction may be offered
in sheltered workshops and adult development
activity centers (ADAP) provided:

(1) Instruction involves the development of
a job skill dependent on equipment or
processes in the work environment
which are not available through college
facilities. The purpose of occupational
extension instruction in a sheltered
workshop/ ADAP is to teach the funda-
mental skills of a particular job. The
achievement of production or perfor-
mance standards established by the
sheltered workshop or ADAP center is
not a goal of these courses. The in-
struction provided shall not duplicate or
supplant existing training provided by
the company/entity.
Content of a sheltered workshop/ ADAP
course is based on an analysis of the
job for which training is offered. The
job analysis shall designate each sepa-
rate task within a job and assign a
number of hours required to teach each
separate task. The course outline and a
fiscal plan for operating each course
shall be approved by the board of trust-
ees. If approval [s not given, no bud-
get /FT E shall be reported for that
course.

Instruction offered is not repetitive or
recurring to the same clients within the
organization. Sheltered work-

shop/ ADAP clients shall not be enrolled
for more than 660 hours during a
12-month period. (The 12-month peri-
od will begin at the start of the initial
training. The initial training period
begins Fall Quarter. 1992.) Excessive
student repeats of the same course are
not appropriate and cannot be funded
with state dollars. No course may be
taken more than four times.

tion approved jn writing by the shel-
tered workshop or ADAP center [n
which the instruction is offered.

t3j

i4]

(51

Instruction provided deals with content
and skills which prepare students for
production work. Instruction which
involves production only cannot be
counted for FTE purposes.
During the time the course is offered,
instructors shall not engage in any
administrative, supervisory, or opera-
tional functions of the organization for
which the course is being offered.
(6) The course includes schedule, course
objectives, and other relevant informa-

(7) The earnback from instruction offered
in these settings will not exceed a rea-
sonable percentage of the direct cost of
the training.
fd) — New and Expanding industry', human re
s ource s development, cooperative s kills training,
small business, apprenticeship and high priority
programs are — separate budget allotments and,
therefore. — de — net — eaffi — regular — budget — FTE.
Regular budget extension funds excluding adult
high school may be used in human resource s
development programs when the s pecial allocations
for these purposes arc obligated and, in this event,
shall earn budget FTE.

Statutory Authority
115D-58.5.

G.S. 115D-5; 115D-31;

.0326 OCCUPATIONAL EXTENSION
INSTRUCTIONAL CONTRACT
FUNDEVG

(a) All student membership hours generated by
the college for a given class where 60 when 100
percent of the instructional hours delivered are
paid from college funds (funds budgeted through
the college's budget including State Current,
County Current, or In s titutional College Funds)
shall be counted for budgeting budget/ FTE purpos-
es. These provisions apply when a college con-
tracts with a company or entity (instructional costs
paid directly to the company or entity receiving the
instructional program) or a "third-party" contract
(the college contracts with a separate entity to
deliver instruction to the company or entity which
requested the instructional program). Following
are applications of this Rule:

(1) For a given class, if the salary salaries
paid to an instructoris] include both
college funds and funds from other sourc-
es 60 percent of the in s tructional hour s
delivered mu s t be paid with college funds
in order to report all the which are not
budgeted through the college's budget,
student hours in membership reported
generated. — If the college pays for less
than 60 percent of the instructional hours
delivered for a given class, student hours
in member s hip reported for the class will
be prorated in the same proportion as the
college funding.

(2) For a given class, if multiple instructor s
are utilized. 60 percent of the instmction

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1574

PROPOSED RULES

(3)

(4)

qI hours doliverod must bo paid with
college funds in order to report ail the
s tudent hours in membership generated.
If a company or agency donates funds to
a college or pays the college for the
instruction delivered, these funds may,
consistent with the definition of college
funds, be used to support classes and
generate budget/FTE.
F©f — a — given — cla ss — that — involves — a
"third party" — instructional contract, the
contracted instnictional figure paid with
college funds will be considered a s ful
filling the 60 percent criteria and the
college may report all the student hours
in membership generated in the particular
clas s . — The "earnback" for a given con
tracted class will be reviewed to ensure
that a college is not earning "windfall
dollars". The instruction provided
through contract shall not duplicate or
supplant existing training.
For a given class, if instruction is proxid
ed at no cost or the instructional salaries
are paid totally and directly — by other
agencies or companies, the cla ss involved
is considered a gratis cla ss for student
reporting purposes (note Paragraph (b) of
Rule .0325 of this Subchapter concerning
gratis — instruction). The community
college shall not contract with a compa-
ny/entity to provide training to its current
employees except under the following
conditions: a college may contract with
a company to provide the cost of replace-
ment of an employee who is providing
the actual training and ]s released from
regular work responsibilities. Reim-

bursement may be provided for appropri-
ate supplies and materials.
(5) Special State Allotments to colleges such
as Human Re s ources Development. Small
Bu s iness. Cooperative Skills, etc.. do not
earn Budget/FTE and are not subject to
the — provisions — &f — thts — Rule. The
college's FTE earnings shall not exceed
a reasonable percentage of the direct cost
of the training,
(b) Any class for which the instructor's services
are provided at no cost or for which the
instructor's salary is paid totally and directly by an
external agency js a "gratis" class. In this situa-
tion, the class is reported as self-supporting, and
does not generate budget/FTE. ff a portion of the

class is gratis, student hours shall be reported
consistent with Subparagraph (a)(1) of this Rule.

(c) Categorical state allotments to colleges
(except literacy) such as Human Resources Devel-
opment. Small Business. Focused Industrial Train-
ing. Community Service Block Grants, etc.. do not
earn budget/FTE and are not subject to the provi-
sions of this Rule. Regular budget extension funds
excluding adult high school may be used m human
resources development programs when the special
allocations for these purposes are obligated and, in
this event, shall earn budget/FTE.

(d) Student class hours for class-size projects in
which instructional salaries are funded by Title II
of the Job Training Partnership Act (JTPA) shall
not receive full FTE funding, but shall receive
administrative cost reimbursement.

Statutory Authority G.S.
115D-58.5.

J15D-5; 115D-31;

.0328 THE FULL-TIME EQLTVALENT
(FTE) SYSTEM

The following categories of FTE will be calculat

jd by the Department:
fH college — tran s fer — education — curriculum

programs.

(5^ general education curriculum programs.

0) technical education curriculum programs.

{A) vocational — education — curriculum — pf©-

grams.

{%) academic extension programs.

{%) adult high school extension programs.

fh avocational extension programs.

f8^ occupational exten s ion programs.

(9^ practical s kill s exten s ion programs.

fW) adult basic education program s .

H+^ learning laboratory.

{¥ir) job training partnership act programs,

■(4^^ new and expanding indu s try programs.

fW) human resources development programs.

s elf s upporting — and — recreational — pre-

grams.

compensator)' education programs.

Statutory Authority G.S. 115D-5: S.L. 1981. c.
859. s. 32,33: S.L. 1981. c. 1282. s. 36.

SECTION .0600 - CAPITAL
CONSTRUCTION

.0601 APPROPRIATION REQUESTS AND
ALLOCATION POLICY

(a) The State Board shall approve appropriation
requests and the allotment of funds to institutions

7.57.5

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PROPOSED RULES

colleges for capital Improvements based on an
adopted formula and as published in the
department's Accounting Procedures Manual, fteed
and utilization of spac e . — These requests shall be
based on the needs of the 5 8 in s titutions as docu
-fr,

fA^

ptefl

mcnted m a five year capital improvement
certified by each local board of trustees. — Thts
five year capital — improvement — plan. — ©fl — forms
provided by the — department. — shall — be — updated
biennially to ensure that the requirement s reflect
the changing patterns in the institutions. — The s e
plans shall — include estimates — of cost for new
construction, major renovations and equipment for
new buildings. — These requests should reflect all
sources of po s sible funds to meet these needs such
as state, local, federal, or any other available
funds.

(b) Fund s allocated by the State Board of Com
munity — Colleges. — whether — titey — be — from — state
appropriations or from vocational education appro
priation s . shall be matched vt'ith local fund s on a
dollar for dollar basi s . — This allows local taxing
authorities — input and — knowledge of additional
building s for which they must provide operating
and maintenance funds. Local expenditure s previ
ously made in excess of required matching needs
shall be allowed to be counted to generate addi
tional state funds for that institution.

-alk

fe) — 1 he full funding of needed projects allows
institutions to — proceed — wrth — construction — ©fi — a
timely — ba s i s — and — ensures — better planning and
utilization of available funds.

{4t) — When circum s tance s warrant, provisions
should be made to waive the matching require
ment s to allow in s titution s to meet educational
need s which oth e rwi s e could not be met. — This
requires approval by the Legi s lature.

{&) — Institutional ranlcings for capital improve
ment projects shall be based on the following
criteria:

Institutions shall be ranked according to
the — utilization — of their — existing — and
funded facilities. — Base data from the
Higher Education Facilitie s Inventory
and Utilization Reports a ss embled by
the Univer s ity of North Carolina Com
mi ss ion on Higher Education Facilities
shall be used, plu s additions and dele
tions based on funded projects. — These
data — may — be — amended — according — to
additional — relevant — information — fw^
ni s hed by th« in s titution s (i.e..

ott campus rented space that will no
longer be needed may bo deleted when
on campus space becomes available.)

TTiese ranlcing s will be determined as
follows:

of "instructional and

(t^ A category

library" — (I & — t) — related — space
shall be determined based upon
the definition of such space as
de s cribed in the N. C. Facilitie s
Inventory and Utilization Study.
The I & L space shall be amended
by any funded additions or known
deletions.

f«3 A s econd category "other s pace"

shall be derived by subtracting the
defined I & L space from the net
assignable square feet as reflected
m — the — institution's — utilization
report as adjusted.

{m) 1 & L s pace, as well as "other

space", defined in this Paragraph
shall be modified to include the
space in tho s e facilities for which
on institution currently has fund
tagr — The department shall use
data from the DCC 3 I form or
the DCC 3 2 form to determine
the breolcdown between I & L and
"other space". — These forms shall
alse — be used to determine — net
assignable square feet for build
ings completed or under construe
tion which are not currently re
fleeted in the inventory. — in s titu
tion s having received additional
s tate appropriations since the last
utilization report was — compiled,
shall have additional square foot
age added based on dividing state
dollar s available by — the current
co s t per square foot to determine
the additional gro ss s quare foot
age to be built. — The gross s quare
footage s hall then be multiplied by
the percentage of net assignable
square feet to gros s square feet a s
reflected — in the N.C. — Facilities
Inventory and Utilization Study to
determine the amount of addition

ft^

net a ss ignable square teet to be
added to that institution. Funds

for ad\

land

ivance planning, land pur
cha s e, s pace renovation or equip
ment s hall — not increase — the — net
a s signable square feet.
ftv^ — Space utilization i s determined by
dividing both the I & L and "oth

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1576

PROPOSED RULES

o r a puoe" — by — tht; — tote) — student
clock — hour a — of in s truction — pef
week to obtain ratios of space to

student — clock — hour s .

Student

clock hour s include botii credit
and — noncredit — courses — which
e xtend for at least eight weeks
and ar e held in space included in
the — Higher — Education — Facilitie s
Inventory Report. — Student clock
hours — ftfe — found — m — ihe — Nr^ — Gr
Facilitie s — Inventory and Utiliza
tion Study. — 1 & L s pace divided
by stud e nt clock hours is also
called Capacity Enrollment Ratio
(C/E Ratio).

fv-) The ratios of the I & L s pac e

student clock hours s hall be dou

fe4ed-

fbt.

-te — add — additional — weigr
These weighted I & L s pace to
s tudent clock — hours ratio s s hall
then bo added to the "other space"
to s tudent clock hours ratios to
provide — « — combin e d — weighted
ratio.

-4%

Irted

e — combmcQ — woig

ratio s s hall be ranlced from low to

high for all institutions. — Lower

ratios rofloct higher utilization of

s pace.

fB) — The state dollars requested for the s e

costs and the type of project would be

shown on the institution ranking li s t

a s determined in Subparagraph (e) (I)

f thi s Rule — Thi s ranking s hall b e

sent — to — aW — institutions — fef — rcviev»'.
After reviewing the combined li s ting,
in s titution s — which — feel — they — have
ju s tification to request an exception to
the ranking may request the State
President to review their circumstanc
esr — Tw© — example s — of exceptional
cases may be using substandard facili
tie s or lacking the — nece ss ary — l ocal
matching fund s .
(€4 — The State President shall appoint a
committee consisting of five mem
bors; throe mstitution presidents, one
s taff member and one other, to study
exception s and to make reconimcnda

tions. If it is determined that an

in s titution ha s justification for modifi
cation — te — the — ranking s . — ks — relative
position — em — the — ranking — may — be
changed ba s ed on committee recom

mendation and concurrence by the
State President.
i&) — The final revised ranlcing s hall be
pre s ented to the State Board for ap
proval and shall constitute the priority
need s — fef — appropriations — wrttl — etti
institutions — ©n — thw — list — have — been
funded. Funding shall be made to the
extent appropriations arc available.

(33 Institution s that cannot utilize available

funding shall be passed over for the
current funding cycle, but shall not lose
their ranJc order.

Statutory Authority G.S. 115D-1; 115D-3; 115D-5;
115D-31; 115D-33; 115D-54; 115D-58.10; P.L.
90-576.

.0602 CAPITAL PROJECT APPROVAL AND
OBTAINING CAPITAL FUNDS

(a) The State Board is charged with the respon-
sibility under G.S. 1 15D-5 to approve sites and
building plans, among other things, for all institu
tions colleges , regardless of source of funds.
(Procedures are located in the department's Con-
struction Manual.) The state board is also respon

siblc for molcing con s truction grant s from State and

Federal — Vocational — Aet — ef — 1968 — funds. The

Department s hall coordinate grant requests under
the Higher Education Facilitie s Act and the same
will apply under other federal acts that have been
or may be pa s sed.

{bj — The Division of State Con s truction of th e
Stat e Department of Administration (hereinafter
called — the — Division — ©^ — State — Con s truction) — is
charged by s tate law with responsibility for ap
proving building plans for institutions and agencies
using state funds in construction project s . Becau s e
federal grants are made with the expectation that
they will be safeguarded in the s ame way that state
fimd s ar e — safeguarded, — this division — ate© — has
responsibility where federal fund s are involved.
Where local funds alone are used, review com
ment s of the Divi s ion of State Construction are

-fef

jndati

rather — the

recommendations — rather — tfrafl — requirements — tor
compliance. — Boeauso it i s ju s t a s important to
insure th e wi se expenditure of local public funds a s
state or federal funds, it is recommended that
boards of trustees accept these recommendation s a s
requirements.

fe) In order to s ecure approval, funds and

ultimately a completed capital project, the follow
ing procedure s are e s tabli s hed:

f-H State Board Preliminary Approval

1577

7:15

NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

{A) — Boards of trustees shall mako applica
tiefl — for approval — of projects — aftd
funds on forms provided by the Do
partmcnt. — The application form shall
certify that the board of trustees holds
a fee simple title or a long term l ea s e
acceptable to the State Board to the
land on which the project is proposed,
the type of construction and approxi
mate size of each proposed facility,
the purpose for which it will be used,
the energy source, the local matching
funds available, and will set forth
clearly the need for the facility in
order — t© — enable — the — institution — t©
provide for the educational programs
approved for the institution by the
State — Board and/or planned by the
administration of the institution;

(B^ — These — needs — Htay — bo for existing
educational — programs — and — students
presently enrolled or for new educa
tional programs approved by the State
Board and/or anticipated increase in
enrollment;

fG3 — It shall specifically be a requirement
that such plans prov i de adequately for
#hs — comprehen s ive curriculum — pfo-
grams assigned to an institution, and
that this be shown on the application
forms;

{&) — include with this preliminary request
an up to date site plan showing exist
ing facilitie s and proposed new addi
tions including parking areas, major
streets, and roadways;

(C3 — Include preliminary schematic plans,
topographical map. estimated cost of
equipment and other schedules which
would aid in s ecuring approval for the
proposed project;

(F) — These applications for aid shall be
examined by the Department, which
shall then moke recommendations to
the State Board.

•fG) — The State Board approval or rejection
of this preliminary planning will be
reported to the president of the insti

(3^

tution.
Owner Architect Agreement

(A) — The owner architect and/or engineer
contract — is — te — be — prepared — by — the
Division of State Construction from
information furnished by the institu
lion .

{B) — The contract should be requested by
letter addressed to the Division of
State Con s truction with a copy to the
Department and should include the
name and address of the architectural
firm, the names and addresses of any
consultants the architect proposes to
employ; a listing of fund s available by
source; and a general description of
the project.

i£r) — This agreement is between the institu
tion and the architect; the State of
North Carolina and the State Board

are not parties to the contract. A

s igned copy i s to be sent to both the
Department of Community Colleges
and the Division of State Construc -
tion.
Schematic Design Phase

{A) — The architect shall submit one set of
the schematic design to the Depart
ment and two set s of the schematic
design to th e Division of State Con
s truction.

(B) — The Department and the Division of
State Construction will conduct re
views of the s ubmitted de s ign. — Com
ments will be furnished to the archi
tect and the institution.

(4)-

Dcsign Development Phase. The archi
tect shall submit one s et of the design
development to the Department and two
s ets of the design development to the
Division of State Construction. R e view
comments — vi4H — be — furnished — te — fhe
institution and architect.

(§>-

Cor

-TlK

instruction Document — Pha s e. Hie

architect s hall s ubmit one set of the
construction document to the Depart
ment and two sets of the construction
document to the Division of State Con
s truction. — Review comments will be
furnished to the institution and archi

{€) Federal Wage Rate Determination. — A

federal — wage — rate — determination — is
required for all projects funded wholly
or partially from federal s ource s . — The
determination must be a part of the
project specifications and should be
requested from the Department approxi
matcly eight weeks prior to the advcr
tising for bids.

Adverti s ing for Bids. Permission to

advertise the project for bids must be

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1578

PROPOSED RULES

socurod from the Dopmtment and the
Di\ision of Stat e Construction.

{^ Rocoipt and Opening of Bid s . fte

institution shall insure that a member of
the Department or the Division of State
Construction is pre se nt at the opening
of bids.

f9^ Av\'ard of Contract s

(A) — The institution's board of trustees, in
formal session, should approve the
awarding of contracts as recommend
cd by the architect and the president
of the institution. — This formal action
should be reported to the Division of
State Con s truction by letter, with a
copy to the Department, a s s oon as
possible after the opening of bids In
order that approval from that division
and — from — the — Department — may — be
secured without undue delay.

fB-) Contracts are not to be awarded with

out the approval of the Department
and the Divi s ion of State Construe
lion ,

<40^ State Board Final Approval. The board

of trustees shall malce application for
final approval of projects and funds on
form s — provided — by — tbe — Department.
The application forms will include the
actual co s t s , s cope, s ource of funds,
and certification of s ource of energy for
the project.

f4-+-) Contract Authentication

fA-) — After the contracts have been signed
by the contractors and the institution,
they should be sent to the Division of
State Construction in order that the
Attorney General's Office may rule
on the authenticity of the documents
and the budg e t divi s ion of the Depart
ment of Admini s tration inay certify
the availability of funds:

ftV

furnish — frvre — copies — when — &ftiy

local

t Q t

o r

vocational education — funds — are
involved:

{Hj furnish seven copie s when other

federal fund s are involved.
f&) — The contracts will be returned for
distribution. — Construction should not
start prior to the receipt of authenti
eated contract s .

■(45-) Pre con s truction Conference

i-Arf — Prior to the s tart of construction, a
conference of in s titutional per s onnel

and contractor s should be called by
the architect to review all aspects of
the project and to resolve any qucs
tions.

fB^ — When vocational education funds arc
involved. — the — Department — mu s t — be
represented.

fG^ — When — other federal — fund s — are — ifl-
volved. the concerned agency or the
Department mu s t be represented.

■(4^^ State Board Reimbursement of Capital

Funds. — The procedures for reimburse
ment of capital funds arc e s tabli s hed by
the Accounting Procedures Manual as
publi s hed by the Auditing and Account '
ing Section of the State Board.
(44) Change Order s

i-Aj — Change order s — af=e — changes — te — the
signed contracts and are binding on
both parties. They arc to be approved
by the contractor, institution, archi
tect. Division of State Construction,
and the Department.

iWi In the case where only local, state or

vocational education — fund s — are — m-
volvcd, — fWe — copies of the change
order — should — be — forwarded — te — the
Division of State Construction.

f€3 — Id the case where other federal funds

arc involved, change orders should be

made in s even copies and forwarded

to the Division of State Construction.

i4S) Final Inspection

fA-) — The Division of State Construction i s
responsible for malcing the final in
spection.

■fB) — After the final inspection the institu
tion will be furnished by the Depart
ment, a Final Inspection Certification
form to be s igned by the president
and the architect, certifying that the

building project i s complete. Thi s

form should be in triplicate. — After
approval by the Department, one copy
will be returned to the in s titution, one
retained by the Department, and one
furnished to the — Auditing and — Ae-
counting Section. — After receipt of the
signed Final Inspection Certification,
the Auditing and Accounting Section
will relea s e the rctainage of state and
vocational education funds involved in
the project — vv'hen — reque s ted on the
appropriate Department form.

1579

7:15

NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

(16) — Final Report and As Built Drawings.
The architect is rcquirod to furni s h a
final report and drawing s representing
the Finished project. — One copy of the
report and one set of drawing s arc to be
furnished to the Division of State Con
s truction. — One copy of the report i s to
be furnished to the Department.

Statutory Authority G.S. 115D-5; 115D-31;
U5D-32; 115D-54; 1150-58.4; P.L. 90-576.

.0603 SITES: LOCAL ZONING
PROTECTION

The establishment of a community college or
technical institute may attract undesirable uses to
the immediate vicinity of the site. The State Board
strongly recommends that the appropriate local
governing body pass suitable regulation s for the
adequate protection of each institution from such
undesirable uses.

Statutor}' Authority G.S. 115D-5; 115D-14;
115D-15.

.0604 LIFE-CYCLE COST ANALYSIS

Unle ss judged by the State — President to be
unnecessary because of scope and proposed use of
facility, plans — for all — project s shall — include a
lif e cycle co s t and energy con s umption analy s i s of
the project. — Procedures for implementation of the
life cycle cost and energy consumption analysis
shall be those set by the Division of State Con
struction.

Statutory Authority G.S. 133-1.1; 115D-5.

SUBCHAPTER 2E - EDUCATIONAL
PROGRAMS

SECTION .0100 - PROGRAM

CLASSIFICATION: DEGREES: DIPLOMAS

AND CERTIFICATES

.0101 PROGRAM CLASSIFICATION

Each institution should offer a comprehensive
program as accessible as possible to all citizens by
offering — courses — and — programs — at — convenient
locations away from institutional campuses as well

a s on campus. The criteria and basis for classify-
ing the programs offered in the institutions colleg-
es are set out in this Rule:
(1) Curriculum Programs
(a) College Transfer Education programs
consist of planned academic curriculum

programs leading to an Associate in
Arts (A. A.), Associate in Fine Arts
(A.F.A.), or Associate in Science
(A.S.) degree and are designed to allow
for transfer to the junior year of a
senior institution, college at the junior
level.

(b) General Education Curriculum pro-
grams consist of basic course work in
English, literature, fine arts, philoso-
phy, social science, science and mathe-
matics leading to an Associate in Gen-
eral Education Degree (A.G.E.) or
Certificate in General Education.
They ar c It is designed principally for
students who desire two years of gener-
al education beyond the high school
level Thi s program and is not princi-
pally designed for college transfer.

(c) Technical Education Curriculum pro-
grams are designed to prepare individu-
als for employment, and completion of
the curriculum leads to an Associate in
Applied Science (A. A.S.) degree.
These programs involve the application
of scientific principles in research,
design, development, production, distri-
bution, or service.

(d) Vocational Education Curriculum pro-
grams consist of a series of courses
which are designed to prepare an indi-
vidual for employment in a specific
occupation. These programs consist of
a sequence of courses which generally
can be completed in one year or less by
a fiill-time student. Successful comple-
tion of a vocational curriculum program
leads to a diploma or certificate.

(2) Continuing Education Programs

(a) Occupational Extension courses consist
of single courses, each complete in
itself, designed for the specific purposes
of training an individual for employ-
ment, upgrading the skills of persons
presently employed, and retraining
others for new employment in occupa-
tional fields.

(b) Academic exten s ion courses consist of
single courses, each complete in itself,
de s igned to serve the academic cduca
tional needs of adult citizens, including
courses in humanities, mathematics and
s cience, and social science. Communi-
ty Service/Visiting Artist Program:

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1580

PROPOSED RULES

{[} Subject to procedures established by
the State Board, the Community
Service/Visiting Artist Program in-
cludes academic, practical skills,
avocational courses, and cultural and
civic activities.

(ii) The instructional component of this
program may be comprised of courses
in the fields of academic, practical
skills, and avocational education.
Instruction offered in this program
shall consist of single courses, each
complete in itself, designed to serve
the specific academic, practical skill,
or avocational needs of adult citizens.
Academic courses are designed to
serve the academic educational needs
of adult citizens; practical skills
courses are designed to provide train-
ing for persons pursuing additional
skills which are not considered their
major or primary vocation but may
reasonably lead to employment; and
avocational courses focus on an
individual's personal or leisure needs
rather than occupational or profes-
sional employment.

(iii) The cultural and civic, and visiting
artist component of this program
meets community needs through
lecture and concert series, art shows,
the use of college facilities by com-
munity groups, providing speakers to
community organizations, and provid-
ing visiting artist activities for college
communities. Qualifying visiting
artists are provided an opportunity to
work as artists in residence to en-
hance local arts resources and pro-
mote the various visual, performing
and literary arts in communities
throughout North Carolina.

ie)-

Practical vSkill s exten s ion cour s e s con
sist of single cour s e s , each complete in
itself, — designed — te — prov i de — practical
training for persons pursuing additional
s kill s whioh ar e not oonsidored their
major or primary' — vocation — but may
supplement income or may reasonably
lead to employment.
Avocational exten s ion courses consist
of single courses, — eaeh — complete — m
itself, which focus on an individual's
per s onal or l eisure needs rather than his
occupation, profes s ion, or employment.

0^ Preparatory or Developmental Programs

fa) Developmental or Guided Studies pro

grams — include — courses — de s igned — (©
provide students with academic skills
development necessary for entering into
curriculum or extension instructional
programs.

(i) A self-supporting course is not reported

to ^is state for budget FTE since the
cost of conducting the course is paid by
students enrolled.

(ii) Recreational programs are self-support-
ing courses which the college may
provide at the request of the community
but for which the college receives no
budgetary credit. Funds appropriated
as operating expenses for allocation to
the colleges shall not be used to support
recreation courses. The financing of
these courses by a college shall be on a
self-supporting basis, and membership
hours produced from these activities
shall not be counted when computing
full-time equivalent students for use in
budget-funding formulas at the state
level.

(d) Basic Skills Programs. The State Board
and the community college system shall
encourage persons to complete high
school rather than seek testing for the
High School Diploma Equivalency.

(i)fb^ Adult High School Diploma Equivalen-
cy Programs.

■(i) Adult High School Diploma programs

consist of classroom instruction, or
learning laboratory courses, or a combi-
nation of both designed to qualify a
student for an adult high school diplo-
ma under an Agreement of Affiliation
with a local public school system.
Approval is given to trustees of com-
munity colleges to enter into an agree-
ment of affiliation with a local board of
education to establish an adult high
school diploma program subject to
procedures established by the State
Board.

(ii) General Educational Development
(GED) programs consist of classroom
instruction, or learning laboratory
courses, or a combination of both de-
signed to qualify a student s ucce ss fully
to demonstrate competency m on the
General Educational Development

1581

7:15

NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

(GED) Tests (GED) and to receive a
High School Diploma Equivalency
Certificate from the State Board. The
State Board is responsible for the ad-
ministration of the General Educational
Development Testing program in coop-
eration with the Office on Educational
Credit of the American Council on
Education. The General Educational
Development (GED) Testing program
will be subject to procedures established
by the State Board.

(iii) Adult Basic Education (ABE) programs
include courses at the elementary in
s truetional — levd — (through the eighth
grade) — usually with emphasis on com
municativc. computational, and social
skill s — given to enable an adult or youth
beyond the age of compulsory school
attendance — te — raise — his/her — level — &f
education, pursue a program of occupa
tional training, and/or function more
adequately as a citizen in a democratic
society, are designed for adults who
are functioning at or below the eighth
grade educational level. The major
objectives of the program are to enable
adults to acquire the basic educational
skills necessary to be fully competent in
our society, to improve their ability to
benefit from occupational training and
to have greater opportunities for more
productive and profitable employment,
and to meet their own objectives for
enrolling m the program. Classes are
offered and focus on fundamental skills
such as reading, writing, speaking,
computing, critical thinking, and prob-
lem solving skills.

(iv) English as a Second Language (ESL)
Program offers classes which accommo-
date the varied needs of the immigrant
and refugee populations. Attention is
given to both the cultural and linguistic
needs as instruction is focused upon the
formation of accurate, appropriate
communication skills and upon the
student's ability to function [n the adult
American community. Classes are
offered at the beginning through the
advanced levels of ESL. The curricu-
lum is designed to develop the basic
language skills of reading, writing,
speaking, and listening. Instruction
integrates the English language with

topics that prepare students for every-
day life, employment, and citizenship,
(v) The Compensatory Education (CED)
Program is designed for adults with
mental retardation. The program is
highly individualized and fosters a
maximum level of independent living
commensurate with personal ability.
Instruction is offered in math, language,
social science, health, community liv-
ing, consumer education and vocational
education.
(5) Business and Industrial Training:

(a) The Focused Industrial Training Pro-
gram addresses critical skills in existing
industries. Based on assessments of
need, these customized classes typically
combine on-the-job training with class-
room instruction to up-grade or train
incumbent employees of manufacturing
industries.

(b) The New and Expanding Industry
Training Program offers customized,
job-specific training to new or expand-
ing companies creating new jobs in the
state.

(c) The Small Business Center Program
provides training, counseling and refer-
ral services especially designed m
content and delivery modes for small
businesses, both existing and prospec-
tive.

(6)f4) Special Instructional Programs:

(a) Human Resources Development (HRD)
programs are js an intensive program
and unified efforts to recruit, train, and
either place in employment or optional
iy-; vocationally train chronically unem-
ployed or underemployed adults. The
primary objective of the training com-
ponent is to help the jobless trainee
reorient orient himself or herself to the
world of work, appreciate the effects of
his or her behavior on others, and
develop the basic academic and commu-
nication skills prerequisite to obtaining
and maintaining employment.

(b) Job Training Partnership Act (JTPA)
programs consist of occupational train-
ing and basic education for disadvan-
taged persons.

(7) fb)Learning Laboratory programs consist
of self-instruction using programmed
texts, audio visual equipment, and other
self-instructional materials. A learning

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1582

PROPOSED RULES

laboratory coordinator has the function of
bringing the instructional media and the
student together on the basis of objective
and subjective evaluation and of counsel-
ing, supervising, and encouraging per-
sons working in the lab.

(e^ Cooperative — SktH — Training — programs

combine on the job training with cla s s
room instruction. — Thi s program would
fiet — require — the — formal — indenturing

procedure aftd would combine

pre employment — training with an

apprenticeship type program.

{4) New and Expanding Industry program s

provide for the training noods of new
industries which are mo\'ing into the
St ate and also for existing industries

fe^-

(fh

t'hich

undergomg a major expansion whicr
result in the need for additional skilled
manpower.

— Visiting — Artist — programs — ftfe — offered
cooperatively v»'ith the North Carolina
Arts Council. — Its purpose i s to provide
artistic talent of a professional lex'cl to
communities — which ordinarily would
not have the benefit of such talent.

— Comprehensive Employment and Train
ing Act (CETA) programs consist of
occupational training and basic educa
tion for unemployed, underemployed,
and disadvantaged persons.

Self Supporting Programs

Community — Service — program s — meet
oominunity needs through lecture and
concert series, art shows, the use of the
institution's — facilities — by — community
groups and by prox'iding spealvcrs to
community organization s . Community
services — program s — demonstrate — the
in s titution's recognition of itself as an

integral part of the community, with a
major responsibility to be involved and
to contribute to the community's overall
cultural, civic, and intellectual growth.

fb] Recreational programs a-r^

s elf supporting courses which the insti
tution may provide at the request of the
community but for which the institution
receives no budgetary credit. — Athletic,
game and hobby courses fall into thi s
categoiy. — The cost of such actis'ities
are — borne exclusively — by the — partici
pants or some contracting agency.

Statutorx Amhorirx G.S. I I5D-1 : 1 15D-2: 115D-5.

.0102 CURRICULUM PROGRAMS:
DEGREES, DIPLOMAS,
CERTIFICATES

The State Board is given authority under General
Statute — 1 15D 5 "... to regulate regulates the
awarding of degrees, diplomas, and certificates .
. ." In exercising this authority, the following
policies arc to be followed: as follows:
(1) The approval of an institution aa a com
munity a college constitutes authorization
to the institution to award the associate in
arts — degree. — ihe associate m — science
degree, diploma, or certificate shall be by
individual program upon meeting the
criteria for the program as prescribed by
the State Board, and the associate in fine
arts degree. — This approval, however,
doe s con s titute recognition of the respon
s ibility of the State Board to work with
the tru s tee s of the in s titution in order to
enable the institution to meet the stan
dards required for the State Board.

i^ State Board approval of vocational and

technical curricula with the authority to
grant degrees, diplomas, or certificates
will be by individual educational pro
gram. Approval by the State Board will
be granted when the institution college
has demonstrated an established need and
can meet the curriculum standards and
provide evidence of sufficient instruction-
al, graduation, faculty, and facility re-
sources, facilities standards approved by
the State Board for the educational pro
gram for which approval is requested by
the trustees of the institution on the ap
propriate DCC Form.
(2)-fJ4 The State System President of the Be
partment of Community Colleges shall
will recommend action on the college's
curriculum programs application to the
State Board, for approval.
(3)-f4^ License to grant degrees, diplomas, and
certificates may be withdrawn if the State
Board find s determines that the in s titution
a college is not maintaining approved
program standards or graduation require-
ments.
(4)f^ Degrees, diplomas, and certificate s s hall
be awarded in approved programs by
licensed institutions on the authority of
the tru s tees of the institution and in ac
cordanee with s tate board approved s tan
dards. The State Board Department of
Community College s v\'ill shall establish

1583

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PROPOSED RULES

standards and criteria and assign a prefix,
curriculum code, a«d official title, cre-
dential, and minimum/maximum credit
hour length as appropriate for te each
curriculum.

(a) The aogociatc degree may be awarded
for the curricula when the prefix of the
curriculum code number is a "C" (col
lege tran s fer), "G" (general education),
or a — '^^ — (technical) and — meets — the
approved — curriculum — standard s . The
college may award the Associate of
Arts, the Associate of Science, or the
Associate of Fine Arts degree to gradu-
ates of college transfer curriculums
when the curriculum meets the criteria
approved by the State Board. The
college transfer curriculum shall be 96
quarter hour credits in length.

(b) The diploma may be awarded for cur
rieula when the prefix of the curriculum
code number is a "V" (vocational) or a
"T" and meet s the approved curriculum
s tandard s . The college may award the
Associate in General Education degree
to graduates of General Education
curriculums when the curriculum meets
the criteria approved by the State
Board. The General Education curricu-
lum shall be 96 quarter hour credits in
length.

(c) The certificate may be awarded for
curricula that arc less than four quarter s
in length. The Associate in Applied
Science Degree may be awarded to
graduates of technical curriculums when
the curriculums meet the State Board
standard. A technical curriculum
length will be set by the curriculum
standard. The minimum length for a
technical program shall be 96 quarter
hour credits and the maximum length
shall be 128 quarter hour credits but,
on special approval by the State Board,
may exceed 128 quarter hour credits in
length.

{€j The State Board s hall approve and fur

nish institutional trustee s general format s
for degrees, diplomas, and certificates on
which the name of the in s titution, the
program, course or courses completed,
the name of the graduate, and the signa
ture required by the trustees can be in
sertcd.

i^ The community colleges in the North

Carolina System of Community Colleges
are authorized to award an associate in
arts or associate in aeience degree to
graduates of the pre professional college
transfer program options which meet the
curriculum requirements approved by the
State Board.

i^ Curriculum requirements for the associate

m arts and associate in science degree
programs:

(e) communications (grammar and/or com

position): A. A. (9 10 qtr. hrs.); A.S.
(9 lOqtr. hrs.);

{b) humanities — and — fifte — arts — (literature,

modern language, religion, music, art.
philosophy, speech): — A. A. (1 4 1 8 qtr.
hrs.); A.S. (6 qtr. hrs.);

fe) mathematics: — A. A. (5 10 qtr. hrs.);

A.S. (18 20 qtr. hrs.);

(d) science: — A. A. (9 12 qtr. hrs. with 3

qtrs. biology or physical lab. science
s equence); A.S. (2 4 qtr. hrs. with 2
yr s . of lab. science);

{e) social science: — A. A. (12 15 qtr. hrs.);

A.S. (9 qtr. hrs.);

ff) physical education: A. A. — (3 6 qtr.

hrs.); A.S. (3 6 qtr. hrs.);

(g) clectivcs (It is recommended that elec

tivcs be talcen in the liberal arts area
and/or cognate areas to the major.):
A. A. (25 44 qtr. hrs.); A.S. (21 27 qtr.
hr s .); (A maximum of 6 quarter hours
credit of cooperative education or work
experience — may — be — included — m — the
elective credit hour s .);

<%) total credit hours required for the Asso

ciatc in Arts and A ss ociate in Science
Degree shall be 96 quarter credit hours.

{9) A ss ociate in Fine Arts

(a) The community colleges in the North

Carolina System of Community Colleg
es are authorized to av»'ard an associate
tfl — fine arts — degree — te — graduates — ©f
pre prof 64 quarter
hour credits in length.

(8) Vocational Curriculums

(A) Vocational curriculums should be
designed to prepare individuals for
skilled or semiskilled employment
opportunities. Study is primarily
oriented to the development of manip-
ulative skill competencies for use in a
specialized occupation.

(B) Graduates from a vocational curricu-
lum should have at least 6 quarter
hour credits in one or more of the
areas of communications skills, ap-
plied sciences, and applied social
sciences.

(C) TTie diploma may be awarded to the
graduate of a vocational curriculum
that is 64 or more quarter hour credits
in length. The certificate may be
awarded to the graduate of a vocation-
al curriculum of fewer than 64 quarter
hour credits in length.

(9) Vocational Specialty Curriculums

(A) Vocational specialty curriculums
should be designed to prepare students
for skilled or semiskilled employment
opportunities. Study is primarily
oriented to the development of manip-
ulative skills for use in a specialized
occupation.

(B) Vocational specialty curriculums
usually include only those subjects
necessary to support the development
of the skills for the specialized occu-
pation. Vocational specialty curricu-
lums should be a minimum of 16
quarter hour credits in length.

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1588

PROPOSED RULES

(10) Procedures for Establishing Standards
for Each Curriculum

(A) The standards for each curriculum
will be established jointly by the
department of Community Colleges
and the institutiono) college(s) offer-
ing or proposing to offer the curricu-
lum.

(B) A curriculum may ha\e subject cate-
gories established with
minimum-maximum quarter hour
credit ranges for the subject area.
Technical curriculums will have mini-
mum quarter hour credits established
for the following subject categories:
technical, related and general educa-
tion. Electi\e quarter hour credits
may also be included as a category.
Vocational curriculums may have
subject categories established.

(D) Cooperati\e education or work expe-
rience may be included in the curricu-
lum up to a maximum of 12 quarter
hour credits.

(Ill Procedures for Changing Standards for
Each Curriculum. Changes in stan-
dards for each curriculum will require
the approval of the State Board. Re-
quest for changes in the standards
appro\ed by the State Board for a
curriculum may be made to the Board
under the following conditions;
(A) request to the department of Commu
nit\- Colleges to change the standards;
(Bj concurrence by the majority of institu
tions colleges offering the specific
curriculum; and
(C) concurrence by the department, ©f
Community College s .
(12) Procedures for Designing Curriculums
at the College Institutional Le\el;

(A) The institution college will be respon-
sible for the design of the curriculum
at the in s titutional college level.

(B) The curriculum will adhere to the
standards as approved b\' the State
Board for the curriculum.

(C) When standards are to be developed
for a new curriculum, the institution
college or institutions colleges plan-
ning to submit applications to the
State Board for curriculum approval

will jointly develop the standards with
the department of Community Collcg
es for the proposed curriculum for
presentation to the State Board for
action.
(D) The in s titution college will maintain
on file with the department of Com
munity Colleges a copy of the official
curriculum approved by the
institution's college's board of trust-
ees. A copy of each revised curricu-
lum will be filed with the department
of Community College s prior to im-
plementation at the institution, col-
lege.

Statutory Aurhoriry G.S. 115D-5.

SECTION .0300 - GENERAL ADLXT:

SPECIAL EXTENSION: AND

COi\EVnjMT\ SERVICE

.0301 ADLTLT fflGH SCHOOL

(a) Approval is given of an agreement of affilia
tion for an adult high school diploma program
established cooperatively between a local board of
education and the trustee s of an institution (for the
institution and or an extension unit) in the commu
nity college system. A copy of the agreement may
be obtained from the Department of Community
Coll e g es .

(b) Agreement of Affiliation Amendment,
agreement — of affiliation — is — changed — under the
section on General — Student Eligibility Require
ments. Item 2. to read as follow s : — For admission
to the adult high school diploma program, a person
must be at least 18 years of age. or as described
under the general admission rule for community
college s and technical institutes.

Statutory- Authorirx G.S. 115D-1: ll:>D-5.

.0302 .^DLTT VOCATIONAL PROGIL\.MS

fa-> — .As a general policy, the State Board will -
a ss ign to the Department of Community Colleges
re s pKjn s ibility for state level administration of all
vocational — programs — f&f — adult s . — except — those
programs — normally — carried — ©n — by — distributive
education, agriculture and home economics teach
ers as a regular part of their dutie s . — For purposes
of this policy statement, an adult is defined as a
person — ¥t4M — has — completed high — school. — or a
person who has attained age 18. or a per s on with
special needs.

1589

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November 2, 1992

PROPOSED RULES

ihj — In the diseussion of tho above policy, "a
person with special needs" waa defined a s a s chool
dropout who is not yet 18 years of age but whose
educational needs cannot be met properly in th e
school program.

(c) It is also interpreted that programs carried on
as part of their regular duties (without extra pay)
by — teacher s — other — thefi — agricu l ture — and — home
economics teachers, — are not prohibited by this
policy.

f#) — This policy assigns to the Department of
Community Colleges responsibility for exten s ion
programs for adults. Selected high school students
may be enrolled in extension courses in a eommu
nity college, technical institute, or technical col
lege under the provisions and procedures set forth
in 23 NCAC 2C .0301(d).

Statutory Authority G.S. 115D-1: 115D-5.

.0303 GENERAL EDUCATIONAL

DEVELOPMENT (GED) TESTING
PROGRAM

(ft) — The department, under the state board is
responsible for the administration of the General
Educational — Development — Testing — program — m
cooperation with the office on Educational Credit
of the American Council on Education.

(b) The State Board and the Community College
System shall encourage persons to complete high
s chool rather than seek testing for the High School
Diploma Equivalency.

fe) — Title of State Credential: High School

Diploma Equivalency.

(d) Minimum Requirements for Testing:

^ Any person 16 or 17 years of age meet

ing one of the following conditions may
be admitted to testing:
(A) — Incarcerated in a correctional institu
tion. correctional youth center, train
ing s chool for adjudicated youth, or
similar institution;

{B) — A patient ef resident e4 a

state operated — hospital — or alcoholic
r e habilitation center;
i:Gj — Enrolled — ifi — er — have — completed — et
program of instruction provided by
the Job Corps or other such agency,
or an apprenticeship training program;
ef
f©) — A — member — ©f — the — United — States
Armed Forces.

f5) Any per s on 16 or 17 year s of age hav

ing officially dropped out of s chool and
ftot — subject to — the conditions — in thi s

Rule may be admitted to testing provid
e^
fA^ — Application is supported by a nota ^
rizcd petition of the individual' s par -
ent, legal guardian, or other person or
agency — having — legal — custody — aftd
control over the applicant; the petition
shall certify' the applicant's residence,
date of birth, date applicant officially
Vt'ithdrcw — from — school — and — the
petitioner's legal relationship to the
applicant; and
(B) — Application for testing is made no les s
than six months from the date the
applicant — officially — Vt'ithdrcw — from
s chool. — However, all or any part of
the six month v»'aiting period may be
waived — by the chief administrative
school officer of the public or private
school unit in which the applicant
resides. — This waiver may be accom
plished through the endorsement of
the notarized petition by the supcrin
tendcnt or his de s ignee; or
iiGj — Applicant is an emancipated minor.

{ij AH — per s on s — shaH — have — officially

dropped out of school prior to applying
to talte the GED tests.

f4) These requirement s s hall apply to both

public and private s chool students.
fe) — Requirements for Issuance of High School
Diploma Equivalency:

f4-) Minimum T es t Score s . A standard

score of 35 on each of the five tests and
a total of 225 on all five te s t s .

(S) Minimum age: — ^#7

<-3) Residence. — Legal residents of North

Carolina — or armed — force s — personnel

stationed within the geographic confines

of this State (and members of their

immediate — families — living — tfi — their

households) are eligible to take the

GED tests.

#) — Requirements for Rctesting. — Part or all of

the GED test battery may be taken again after a

period of at lea s t six months from the date the tests

were fir s t talcen. — The procedure in applying for a

rctest is the same as required for the original test.

In some instances a retest may be authorized in

le ss than s ix months by the chief examiner of an

official GED te s ting center or by the State GED

Administrator, upon pre s entation of satisfactory

evidence of intensive study to the chief examiner

or other written justification sati s factory to the

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1590

PROPOSED RULES

President of the Community College System or hi s
designee.
tg-) — Security.

f4^ The sceurity of the te s t s , the integrity

of the testing program and the validity
of test seorea attained shall be proteet
cd; and the President of the Community
College System or his designee may
resolve any doubtful case by requiring
the applicant to retc s t.

(3^ A — person — wfee — begins testing at an

official GED testing center shall com
plete testing at that center. — If the per
son needs to continue testing at another
center, the per s on s hall have approval
from the office of the State GED Ad
ministrator; — otherwise, — 9«eh — testing
shall be invalid. — The same rule shall
apply to reteating when a person com
pletes the GED test battery and fails to
achieve a passing score.
{^ — Method of Applying. — Civilian applications
must be on a special form obtainable from the
office of the State GED Administrator, the Depart
ment of Community Colleges, offices of local
superintendent s of schools, and college s of th e
Community College System. Applications must be
endorsed and approved by a president of a college
of the Community College System or his designee,
or by the manager of a Veterans Administration
hospital having an authorized educational therapy
program. — Applications from military' personnel
must be on the appropriate Department of Commu
nity Colleges form endor s ed by the military educa
tion officer.

(i) Official Transcripts. — Test s cores arc accept
ed as official only when reported directly by:

fH Official GED center s ,

f2^ Transcript Service of the Defense Ac

tivity — for — N'on Traditional — Education
Support (DANTES),

{i) Veterans Administration ho s pital s and

centers, and

the GED Te s ting Service.

(j) Fee:

<-H A fee is required from each student

(applicant) who take s the General Edu

cational — Deveic

;nt (GED) Test at

■pifl-

official GED Testing Centers in the
community college system. — Two do I
lars and fifty cents ($2.50) of the GED

fee s hall be used to

the cost for

pay

scoring the written essay part of the
test: this portion of the fee s hall be
deposited a s s tate fund s . — The remain

0>-

ing portion of the GED foe shall revert

to the General Fund.

Issuance — ef — High — School — Diploma

Equivalency; no charge,
(k) The state board s hall, upon the rccommenda
tion of the State GED Administrator, determine the
tabli s hment or di s e s tablishment of GED

e*
center s .

testing

f4^ — GED testing centers shall inform the State
GED — Administrator of any new, — alternate, — ©f
replacement chief examiners and proctors before
such persons assume their duties.

ffl^

Recordkeeping. Official — GED testing

centers shall supply the State GED Administrator's
office — with — information — nece ss ary — te — maintain
permanent records on all examinees.

Statuton- Authority G.S. 115D-1; 115D-5: S.L.
1987. Ch. 738. S. 219.

.0304 THE VISITING ARTIST PROGRAM

(a) The Visiting Artist Program is a cooperative
grant program of the State Board of Community
College s (through the Department of Community
Colleges) and the North Carolina Arts Council.

(b) The State Board shall provide a special grant
of fund s to cover salary, travel, telephone, materi
als and supplie s expen s e s for a Vi s iting Artist to
ftfty — community — oollego — or technical — institute,
provided that the institution:

fl-) s ubmit a reque s t for a Vi s iting Arti s t to

the Department of Community College s
each fiscal year of participation,

(34

agree to employ an artist from an ap
proved candidate list provided by the
North Carolina Arts Council, and

fror

-(fe«

appoint a — coordinator — rrom — tfte

institution's staff to assist the artist in
his or her residency activities and pro -
motional efforts.
fe) — It is a responsibility of the Arts Council to
recruit — and — screen, — by — means — of professional
panels, artists of exceptional — merit to become
approved candidates. Each institution will conduc t
it s own personal interviews of artists from this
candidate list.

(fH — General terms of employment for an arti s t
shall be:

-n^

tef

c artist may not be given rcgu
teaching assignments in the classroom
or individual student assignment s ;
The artist shall be available without fee
for lecture demonstrations, performanc
es afld exhibition s , work s hop s .

1591

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NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

i4h

consultancies and special projects in the
institution's administrative area;
Each artist shall be employed for no
more than two consecutive fiscal years
at any single institution and no more
than four consecutive fiscal years in the
Visiting Artist Program;
An artist who is employed in one fi s cal
yeaf — is — automatically — con s idered — an
approved candidate for the following
year, provided the artist is not in his or
her fourth consecutive year of participa
ttofl^ — Arti s t s who remain out of the
program for one year or more must
re apply for candidacy through the Arts
Council;

An artist may s erve only one institu
tion. but artists may exchange porfor
mances or short term residencies with
arti s t s at other institutions participating
in the Visiting Artist Program.

Statutory Authority G.S. 115D-5.

.0305 CONTINUING EDUCATION
PROGRAM MANAGEMENT

The Community College Sy s tem was created for
the purpose of. and is committed to delivering
appropriate educational services to adult citizens.
Effort s shall be made to ensure that facilities
where classes are held provide appropriate envi
ronmcnt s which are conducive to learning. — Con
tinning education classes offered in private homes
or private home ba se d bu s ines s e s s hall — be ap
proved by the college president or his designee
prior to the classes being offered. — Documentation
of such approval shall be maintained at the college
until relea s ed from all audits (sec Public Records
Retention and Di s po s ition Schedule for Institutions
in the Community College System).

(a) Continuing education programs shall provide
lifelong learning experiences offering planned
instructional responses to identified needs of
targeted audiences. Instructional objectives shall
specify' the skills, knowledge and attitudes the
learner should be able to apply upon satisfactorily
completing the continuing education experience.
Adequate educational facilities, instructional aids,
and other instructional materials shall be provided
to support continuing education courses.

(b) Facilities where classes are held must pro-
vide appropriate environments which are condu-
cive to learning. Continuing education classes
offered in special settings (such as private homes
or private home-based businesses) other than

generally accepted learning environments shall be
approved by the college president or designee prior
to the class being offered. Documentation of such
approval shall be maintained at the college until
released from all audits (REP: Public Records
Retention & Disposition Schedule for colleges in
the community college system).

(c) Each college's local board of trustees must
adopt a policy which requires the development and
implementation of an internal audit plan. Each
college is required to publish, maintain and utilize
an internal audit plan. The college presidents shall
periodically report to the board of trustees on the
findings of the internal audit. The internal plan
must be submitted to the department for compli-
ance review.

Statutory Authority G.S. 115D-1; 115D-5.

SECTION .0400 - INDUSTRIAL SERVICES

.0401 TRAINING FOR NEW AND
EXPANDING INDUSTRY

(a) The creation of more jobs and better paying
jobs in North Carolina by promoting the expansion
of existing industries and by attracting new Indus
trios to the state was a major consideration in the
original e s tablishment of the indu s trial education
center s and later the Community College System.
Th e ability of the educational system of the state to
produce trained people to fill the new jobs created
was and remains the prime factor in getting new
industry to North Carolina. Customized training
programs for new and expanding companies shall
be provided to support the economic development
of the state. TTie training programs for new and
expanding industries shall be administered by the
college, with consultation and assistance from the
department's staff, in accordance with procedures
approved by the State Board.

(b) The State Board has developed and approved
the — following — policy — with — respect — to — training
manpower for individual manufacturing firms or
corporations:

{+) Legitimate training programs for a new

or expanding industry that creates new
jobs — wtH — be developed — and — funded,
tailor made for each industry, to meet
the immediate trained manpower needs
when the plant, new or expanded, is

ready to go into production. In the

process of providing such a program.
the plant management will be helped in
the development of a long range train
ing program, of its own. to meet tho s e

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NORTH CAROLINA REGISTER

November 2, 1992

1592

PROPOSED RULES

roplaeemont and retraining needs that
industrs' should and can be prepared to
do for It se lf.

State funds

4=»e-

*s — runas will — be established — in a
separate budget to support the training
for new and expanding industry'. — The
new industry' budget will be u s ed to
support only those legitimate training
project s that ereate new jobs in new and
e.xpanding industry'.

0^ The Department of Community Collog

es will work elo s ely with the institu
tions in preparing training program s for
new and expanding industry.
The actual training for new or expand

(4^

ing industries will be conducted by the

in s titutions.
(b) State funds are appropriated to the depart-
ment in a separate line to support the training for
new and expanding industry. These funds shall be
used to support only those training projects that
create new jobs in new and expanding companies.
They shall be allocated to and expended by the
college jn accordance with the appro\ed project
plan and budget.

Sturuton- Amhorit}- G.S. 1 15D-5.

.0402 PROVISION OF IN-PLANT
SKILL TRAINING

(a) Chapter 115D of the General Statutes of
North Carolina authorizes the in s titution college to
conduct in-plant courses to assist manufacturing,
seryice. and/or go\ernmental organizations with
in-ser\'ice training of their employees. In-plant
training is defined as an occupational extension
course that meets the following conditions:

(1) Training shall occur in the facilities or
at the sites in which the organization
normally operates.

(2) Enrollment shall be limited to the em-
ployees of the organization in which the
training occurs; trainees may be
newly-hired employees who need enlr>'
level skills or existing employees who,
due to documented changes in the job
content, need up-grading or retraining.

(3) Training shall be conducted at the
employee's assigned work station dur-
ing normal working hours.

(4) Training shall be directly related to job
skills.

(b) In s titution s Colleges are encouraged to offer
in-plant courses in those situations where the
development of job skills is dependent on equip-

ment or processes in the work environment which
cannot be reasonably duplicated in an institutional
a college setting. The purpose of an in-plant
course is to teach the fundamental skills of a
particular job. The achievement of production or
performance standards established by the employer
is not a goal of in-plant courses. The instruction
provided shall not duplicate or supplant existing
training or training for normal job turnover.

(c) The community colleges may contract with
a company to provide in-plant training to its
current employees under one of the following
conditions:

(1) A college may contract with a company
to provide the direct cost of replace-
ment of an employee providing the
actual training who is not hired by the
company as a trainer, and who is re-
leased from regular work responsibili-
ties during the time for which contract-
ed to provide instruction. Replacement
cost is defined as actual costs which
were expended by the company to
replace on a temporan,' basis the con-
tracted employee from normal duties
while proN'iding instruction. In this
situation the college may earn regular
budget/FTE.

(2) A college may contract with a company
to provide indirect replacement cost.
The cost, if this option is applied, will
be the salary loss of production time to
the company for the individual contract-
ed to deliver the instruction. This
indis'idual must not be a regular trainer
or have instructional responsibilities as
a part of the regular job requirement.
In this situation the college may earn
the actual cost of the contract by deter-
mining, for the employee who js actual-
iy doing the instruction, an hourly wage
rate for the instructor's normal job
times the actual hours of instruction.

This will be the contract cost, and the
college will be reimbursed this cost plus
15 percent of the cost for deliver\' of
in-plant instruction when contracted
through a company. If the college
provides the supplies and materials,
these costs may be added to the instruc-
tional cost as a part of the contract.

Supplies and materials are not be in-
cluded in the instructional cost plus 15
percent calculation. Contracted instruc-
tion applying this option may neither

1593

7:15

NORTH CAROLINA REGISTER

November 2, 1992

PROPOSED RULES

exceed 160 hours nor be provided on a

repetitive basis.
(d)-fe^ Content of an in-plant course shall be
based on an analysis of the job for which training
is offered. The job analysis shall designate each
separate task within a job and assign a number of
hours required to teach each separate task. The
course outline and a fiscal plan for operating each
course shall be approved by the board of trustees.
If approval is not given, no budget/ FTE or con-
tract reimbursement shall be reported for that
course.

f4)(e) An in-plant course shall not exceed may
be offered up to 440 hours [except when applied as
option noted in Subparagraph (c)(2) of this Rule
which may not exceed 160 hours], in duration: no
No employee shall be trained for more than 440
hours nor enrolled — m — more — then — twe — in plant
courses during a 12-month period. (The 12-month
period will begin at the start of the initial training.
The application of this provision will begin on or
after the first day of FaU Quarter. 1992.) An
in-plant course shall not be offered on a repetitive
or recurring basis to the same employees within
the same organization. An employee may not take
a course more than twice.

(1) An in plant course not exceeding 160
hour s — ifl — duration — shall — net — require
dopartmental — approval; — the — institution
college shall s ubmit to the department
only a report of each course and shall
retain in its files records and documen
tation substantiating each course in this
category. The college shall submit to
the department a course outline and
other required documentation from the
employer for all in-plant classes for
review.

(2) An in plant cour s e exceeding 160 hours
in duration shall require departmental
approval. — The in s titution s hall submit
to th e department an application com
plete — w+#i — course — outline — and — other
required documentation from the em
ploycr at least one week prior to the
first class meeting. The college shall
retain in its files records and documen-
tation substantiating each course.

(3) The department shall furnish to the
institution college forms and procedures
for reporting in-plant courses, of 160
hour s or less and for applying for ap
proval to operate courses of more than
160 hour s .

(4) A community college's FTE earnings
shall not exceed a reasonable percent-
age of the direct cost of the training.

(5) Instruction provided deals with content
and skills which prepare students for
production work. Instruction which
involves production only cannot be
counted for FTE purposes.

4e)(f) An instructor of an in-plant course, wheth-
er an employee of the organization in which the
course is offered or an employee of the sponsoring
institution, college, shall not, during hours of
instruction, be involved in any activity other than
instruction. An instructor shall not engage in any
administrative, supervisory, or operational func-
tions of the organization in which a course is
offered during those hours when he or she is
partially or totally paid by the institution, college.
An appropriate official of the organization in
which the course is oifered shall agree in writing
to these conditions.

Statutory Authority G.S. 1 15D-5.

.0403 INSTRUCTION TO CAPTIVE/
CO-OPTED GROUPS AND ON
MILITARY BASES

fa) Pursuant — t© — the — requirements — of G.S.

115D 5(c). the State Board defines "captive" and
"co opted" groups as meaning immured group s
inclusive of the following:

(4-) Group s in the custody of the Depart

mcnt of Correction — (taught in these
facilities);

f3^ Clients of sheltered work s hops in s hel

tcrod workshops;

{?3 Resident s of re s t and nursing homes,

alcoholic rehabilitation centers, mental
retardation — center s — and — in patients of
mental hospitals (taught in these facili
ties);
^ Military personnel taught on the base-
Professional and support staff for the above agen
cics arc not to be considered a s immured groups.
(a) A college is required to obtain State Board
approval prior to providing instruction to students
who are clients or residents in a captive or co-
opted setting. This includes inmates iji correction
facilities and clients of sheltered workshops;
residents of rest homes, nursing homes, alcoholic
rehabilitation centers, and mental retardation
centers; and in-patients in mental hospitals when
the instruction is provided in their respective
facility.

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PROPOSED RULES

(b) A college is required to obtain approval
prior to pro\iding instruction for any course on a
military base.

icj-fb^ Classes for adult basic education, adult
high school diploma, fm4 GED preparation, and
compensatory education are given exempt from
prior (blanket) approval fef — immured — groups.
requirements of this Rule.

aurod

-Mi — requests for in s truction of

groups shall follow the procedure s of this Rule
before state fund s are expended for in s truction:

i-i^ A request shall have prior approval of

the local board of tru s tee s ;

i3-) A reque s t and s upportive information

shall be submitted in a form and man
ner determined by the State President,
(d) The State Pre s ident will s ubmit the requests
to the State Board for action. — Initial approval may
be granted by the State President prior to State
Board action.

te-) — Reque s ts may be approved when it i s deter
nnned — by the — State — Board that the — instruction
proposed for the immured group is not a function
expected normally of the requesting agency, the
in s truction is vx'ithin the purpose of the community
college system, and fund s are a\'ailablc.

fft — Pro\ i s ion s of thi s Rule apply only to those
groups defined in (a) of this Rule.

(d) The request and supportive information to
offer a course shall be submitted to the State Board
in a form and manner determined by the System
President.

(e) Course approval for instruction to captive
and co-opted groups or instruction on a military
base may be approved v.hen it js determined by
the State Board that the proposed instruction for
the group is not a function normally expected of
the agency or the military and the instruction is
within the purpose of the community college
system.

Siatiaorx Authohn G.S. 115D-1: 1150-5.

SECTION .0500 - ARTICUL.4TION: PUBLIC

SCHOOL AND COMML^lTi

COLLEGE SYSTEMS

.0501 ARTICULATION

(a) The State Board encourages formal and
informal articulation effort s on a continuing basis
betvwcn the s y s tem of elementary and s econdary
education and the system of technical institutes and
community colleges. The State Board of Commu-
nity Colleges shall meet with the State Board of
Education and the Board of Go\ernors of The

University of North Carolina to discuss educational
matters of mutual interest and to recommend to the
General Assembly such policies as are appropriate
to encourage the improvement of public education
at every level in North Carolina.

ih) — Articulation programs shall be designed to
meet one or more of the following purposes:

f+^ provide for articulation of subject mat

tef between this secondary and

post secondary institutions;

f3^ promote innovation and coordination of

both — secondary — and — post secondary
institution s ;

{%^ provide for articulation between second '

ary and post s econdary institutions and
where — appropriate. — business. — health,
agriculture. — public — service. — industry
concerns. pri\'ate schools, and appoint
e d or elected local officials;

f+) develop in all teachers and other partic '

ipants an av^'arcncss of the opportunities
for employment — irH — business. — health,
agriculture, public service, and industry
concerns;

{&j proN'ide an opportunity for joint utiliza

tion and sharing, where possible, of
physical facilitie s , equipment and mate
«ais — available — at the — secondary — and
post secondary le\'els;

ifi) provide for continuous study, cvalua

tion and improxcmcnt of articulation
efforts between both systems; and

(t^ improve public relations at both the

secondary and po s t s econdary Icx'el.
(b) The State Board encourages formal and
informal articulation efforts on a continuing basis
between the educational systems. Articulation
between the State educational systems should
address programming, transferability, and other
student-oriented issues which would result in better
serving the educational needs of North Carolina.

Where feasible, the joint utilization of physical
facilities, equipment and materials should be
considered.

fe^ — Within resources as'ailable, the Department
of Public Instruction and the Department of Com
munity College s will support articulation efforts bv
prox'iding consultant help, when requested, to local
administrative units and to community college s and
technical institutes.

Stumor}- Authoriry- G.S. 115D-2.1: 115D-3: 115D-5.

.0502 FLIVDING AiND OTHER
PROCEDLHES

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PROPOSED RULES

^B) — For funding purposes only, the expenditure
of available funds will be based on the number of
teachers, principals, and supervisors in the public
schools — m — the — in s titution' s s ervice — area, — new

liable

de s ignated a s ABE.

9he\

Je s ignatcd a s ABb. a s s nown in the late s t available
allotment information prepared by the Division of
Teacher Allotment and General Control.

ihj Articulation — programs — vv4H — be — financed

where — po ss ible — by — approved — budget — transfers

within the institution's budgets. Stipends and

travel may be paid to participant s not on the public
school payroll at the time the programs are con
ducted.

inded

(c) The maximum amount that may be cxper
where fund s are avjiilable for articulation programs
will be two thousand dollar s ($2,000) or seven
dollar s — ($7.00) per professional — public — school
employee (as defined in (a) of thi s Rule) in th e
in s titution' s ABE service area, whichever is larger.
In many eases. — s atisfactory — program s — may — be
conducted without tran s fer or special allocation of
funds. — Funds in excess of the above amounts will
require special State Board approval.

(d) — In ca s es where the amount of funds per
institution by budget transfer is limited, or for
some other justifiable rea s on i s not equal to tv>'o
thousand — dollars — ($2.(300) — asd — tbe — institution
wi s he s to conduct an articulation — program, the
difference may be allocated to the in s titution upon
request by special allocation from state funds,
subject to the availability of s uch funds.

fe) — Prior to implementing a program, the presi
dent will provide evidence to the State President of
t^ie — Department — of Community — Colleges — that
articulation efforts will be coordinated with local
school officials. — A summary of the articulation
program — conducted. — to — include — em — evaluation
report, will be submitted at the end of the pro
gram.

(f) All programs will be conducted at communi
ty colleges and technical institutes, unless there are
justifiable reasons for holding the programs else
where.

Statutory Authority G. S. 1 15D-1; 1 15D-3: 1 15D-5.

SECTION .0600 - VOCATIONAL
CURRICULUM

.0602 CURRICULUM INSTRUCTIONAL
CONTRACT PROVISIONS

(a) Each college is to assess its own need to
provide instructional services by contracting with
other public or private organizations or institu-
tions. Any curriculum instructional program or

course intended to be offered by contract must be
submitted to the System President of the Commu
nity College System for approval. This policy
does not apply to contracts between a college and
its individual instructors.

(b) Any curriculum contract entered into by the
local board of trustees of a college must meet the
following general criteria:

(1) A contract document in proper legal
form is necessary in all cases and shall
be drawn up by the college consistent
with the requirements of the local board
of trustees, the public or private organi-
zations or institutions being contracted
with and the State Board's criteria.

(2) The contract shall be limited to and not
exceed the fiscal year in which it be-
gins.

(3) The provisions for payment under
contract shall not exceed usual and
customary costs associated with the
contracted instruction.

(4) The contract shall provide that the
college personnel shall have the right to
supervise the educational program
offered by the public or private organi-
zations or institutions to the extent
necessary to ensure the quality of the
instructional program.

(5) The contract shall provide that the
college, the department and the State
Auditor shall have access to the records
of the contractor to the extent necessary
to ascertain the accuracy of such re-
cords and shall authorize the depart-
ment to obtain such fiscal accounting
reports as are necessary in carrying out
the terms of the contract.

(6) Curriculum courses taught under con-
tract shall be limited to programs the
college has been authorized to offer.

(7) The contract shall stipulate that students
taught under the terms of the contract
shall pay the same fees charged other
students in similar programs in the
college, which fees shall be deposited
in like manner as other fees. No tuition
or fee charges shall be collected by the
public or private organizations or insti-
tutions from students taught under such
contracts unless specified by the con-
tract.

(8) The contract must be signed by the
chairman of the board of trustees,
president of the college and a represen-

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1596

PROPOSED RULES

tative of the public or private organiza-
tions or institutions.
(9) Approval Procedure. When approved
by the local board of trustees and the
public or private organizations or insti-
tutions, the contract document shall be
submitted to the System President who
is authorized to approve the college's
budget for the contracted instructional
services if the requirements in Para-
graphs (b). (c). (d). and {e) of this Rule
have been met.
(c) In addition, the The following provisions
shall apply specifically to curriculum contracts
with a proprietary or private non-profit institution
or public agency.

(1)

(2)

The proprietary or private non-profit
institution with which the contract is
made must be licensed as required by
the General Statutes of North Carolina
and must have maintained the licensure
for a minimum of two years to offer the
instruction desired.

If federal funds are to be used to pay
for instruction provided under the
conditions of the contract, the propri-
etary or private non-profit institution
must meet the requirements of the
private vocational training institution.
^(3) The chief executive officer of the pro-
prietary or private non-profit institu-
tion, or his designated agent, must sign
a certification statement that the pro-
gram in question, facility, or contract
for services to students will be open
without regard to race, age, color,
creed, sex, political affiliation, or hand-
icapping conditions.
{ej{4) Public or private colleges or universi-
ties must be licensed as required by the
General Statutes of North Carolina to
offer the instruction desired if entering
into a contract to provide instructional
services with the board of trustees of a
college.
(d) Instructional curriculum contracts with local
school administrative units must meet the follow-
ing conditions:

(1) Shall not supplant existing funding for
public school positions;
Must provide through the Cooperative
Agreement Program (Huskins Bill)
college-level classes which could not be
otherwise provided.

12}

tf)(e) Unless otherwise specified, colleges shall
earn reimbursement on the regular formula budget
for student membership hours generated by in-
struction under contract except that cosmetology
instruction offered under contract shall be funded
for instructional units at the occupational extension
formula rate and for instructional support and
administration at the curriculum formula rate. As
per Paragraph (d) of this Rule, if a college con-
tracts with a local school unit under the Coopera-
tive Agreement Program (Huskins Bill), the col-
lege would recoup the direct instructional cost
contained in the contract and 15 percent for admin-
istrative cost incurred.

(g) Approval Procedure. When approved by the
local board of trustees and the public or private
organizations or institutions, the contract document
shall be aubmittcd to the President of the Commu
nity College System who is authorized to approve
the oollogc's budget for th e contracted instructional
services if the rcquircmonta in Paragraphs (b), (c),
(d) and (e) of this Rule have been met.

Statutory Authority G.S. 115D-1 through 115D-5:
115D-18: 115D-20{6): P.L. 88-352; P.L. 98-524.

.0603 RURAL RENAISSANCE

CONSORTIUM INSTRUCTIONAL
MODULES

fa) — The Rural Ronaissanoc Consortium was
formed by the State Board to provide services in
staff development and educational module produc

tion.

ihj — The director shall be appointed by the

Exccut

Committee — of the — Consortium — aed

we-
approvcd by the State President.

{ej — The Consortium may enter into a contract
with the State Board to develop educational prod
ucts and, with the approval of the State Board to
contract with private firms for the s ale and distri
bution of such materials in accordance with State
and Federal laws.

fd) — Proceeds from the sale of material s shall
accrue to the State Board for its use subject to the
approval of the Office of State Budget.

fe) The Con s ortium s hall — malce available a

biannual activities report to the State President.

ff) — An annual report of the consortium activities
shall be made to the State Board by the State
President.

Statutory Authority G.S. 115D-1 through 115D-5;
115D-54.

1597

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PROPOSED RULES

lylotice is hereby given in accordance with G.S.
1508-21. 2 that the North Carolina Department of
Community Colleges intends to adopt rules cited as
23 NCAC3A .0101 - .0114. .0201 - .0214.

1 he proposed effective date of this action is July
1. 1993.

1 he public hearing will be conducted at 10:30
a.m. on November 18, 1992 at the Auditorium of
the Highway Building, 11 South Wilmington Street,
Raleigh, N.C. 27601-1494.

Ixeason for Proposed Action: To inform affected
owners of proprietary schools licensed by the State
Board of Community Colleges and the public of the
requirements for obtaining licenses and operating
such schools.

Lyomment Procedures: Interested persons may
present statements either orally or in writing at the
public hearing, or in writing delivered or mailed,
addressed to: Clay Tee Mines or Bill Cole, De-
partment of Community Colleges. 200 West Jones
Street, Raleigh, NC 27603. Written comments
must be received by 5:00 p.m. on December 2,
1992.

CHAPTER 3 - MISCELLANEOUS
PROGRAMS

SUBCHAPTER 3A - PROPRIETARY
SCHOOLS

SECTION .0100 - BUSINESS, TRADE AND
TECHNICAL SCHOOLS

.0101 LICENSING SCHOOLS

Application for an Original License:

( 1 ) Any person or persons (partnerships,
associations, or corporations) operating a
proprietary business, trade or technical
school with an enrollment of more than
five persons in the state of North Caroli-
na shall obtain a license from the North
Carolina State Board of Community
Colleges.

(2) A preliminary application shall be sub-
mitted setting forth the proposed location
of the school, the qualifications of the
director of the school, a description of
the facilities available, courses to be

offered, and financial resources available
to equip and maintain the school. The
State Board may request other state occu-
pational licensing or approving bodies to
a pprove the adequacy of programs,
equipment, and personnel during the
preliminary application phase. Upon
approval of the preliminary application.
a final application may be submitted.
This application shall be verified and
accompanied by the following:

(a) A certified check or money order in the
amount of seven hundred and fifty
dollars ($750.00) made payable to the
North Carolina State Treasurer: (Each
license shall be an annual license which
shall expire on the 30th day of June
next following date of issuance.)

(b) A copy of the school's catalogue or
bulletin in published form certified as
true and correct in content and policy
by an authorized official of the school
and shall include the following:

(i) Identifying date, such as volume
number and date of publication;

(ii) Name of the institution and its gov-
erning body, officials, and faculty;

(iii) A calendar of the institution showing
legal holidays, beginning and ending
date of each quarter, term or semes-
ter, and other important dates:

(iv) Institution's policy and regulations
relative to leave, absences, class cuts,
makeup work, tardiness, and interrup-
tions for unsatisfactory attendance;

(v) Institution's policy and regulations on
enrollment with respect to enrollment
dates and specific entrance require-
ments for each course;

(vi) Institution's policy and regulations
relative to standards of progress re-
quired of the student by the institu-
tion; (This policy shall define the
grading system of the institution, the
minimum grades considered satisfac-
tory, conditions for interruption for
unsatisfactory grades or progress and
description of the probationary peri-
od, if any, allowed by the institution,
and conditions of re-entrance for
those students dismissed for unsatis-

factory progress. A statement will be
made regarding progress records kept
by the institution and furnished the
student.)

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PROPOSED RULES

(vii) Institution's policy and regulations
relating to student conduct and condi-
tions for dismissal for unsatisfactory
conduct;

(viii) Detailed schedule for fees, charges
for tuition, books, supplies, tools,
student activities, laboratory fees,
service charges, rentals, deposits, and
all other charges; (Charges for these
items may not be increased to off-set
the cost of tuition.)
Policy and regulations of the institu-
tion relative lo the refund of the
unused portion of tuition, fees, and
other charges in the event the student
does not enter the course or with-

(ix)

draws or is discontinued therefrom;

(x) A description of the available space,
facilities, and equipment;

(xi) A course outline for each course for
which approval is requested;

(xii) Policy and regulations of the institu-
tion relative to granting credit for
previous educational training;

(d) A complete detail of ownership; (TTiis
will show stock distribution if the
school is a corporation, or partnership
agreement if the school will be operated
as a partnership.)

(e) Information on all administrative and
instructor personnel who will be active
in the operation of the school, either in
full- or part-time capacity; (This infor-
mation will be submitted on forms
provided for this purpose. )

(f) Enrollment application or student con-
tract form;

(g) School floor plan showing doors, win-
dows, halls, and seating arrangement;
also offices, rest rooms, and storage
space; the size of each room and seat-
ing capacitx' will be clearly marked for
each classroom; lighting showing kind
and intensity v\ill be indicated for each
room; the type of heating and cooling
system used for the space occupied
shall be stated;

(h) Photostatic copies of inspection reports
or letters from proper officials to show
that the building is safe and sanitary
and meets all local city, county, munic-

ipal, state, and federal regulations such
as fire, building, and sanitation codes;
fi) If building is not owned by the school,

a photostatic copy of the lease held by
the school for the space occupied;
fi) Letter from the clerk of superior court

of the county in which the school is
located stating that a guaranty bond or
guaranty bond alternative is on file,
(i) Applicants unable to secure a guaran-
ty bond may seek a waiver of the
bond from the State Board of Com-
munity Colleges and approval of one
of the bond alternatives,
(ii) Bond alternatives may be in the form
of an assignment of a savings account
or a certificate of deposit with a state
or federal savings and loan associa-
tion, a state bank, or a national bank
which is licensed to do business in
North Carolina and is insured by a
federal depositors corporation.
(3) A person or persons purchasing a propri-
etary business, trade or technical school
already operating as a licensed school
shall comply with all of the requirements
for securing an original license. A ii;
cense is not transferable to a new owner.

(4)

t5j

ial

All application forms and other data shall
be submitted in full. Such terms "previ-
ously submitted" when referring to a
former owner's file will not be accept-
able. A separate license shall be required
for each location of each school, or
branch thereof. Classes conducted by the
school in separate locations must be
reported and approved prior to advertis-
ing and commencement of classes.
A temporary operating license, not to
exceed 90 days, may be issued to a
school upon its sale if tlie school held a
valid license prior to the sale and rf
evidence indicates that it is likely to
qualify for a license after the sale.
Changes In application information pre-
sented for licensure or reiicensure relat-
ing to mission, programs, location or
stock distribution require prior approval
and licensure amendment by the State
Board.
Program additions require curriculum
reviews and program or course approv-
als prior to initiation. A check or mon-
ey order in the amount of one hundred
dollars ($1(X).(X)) made payable t_o the

1599

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PROPOSED RULES

North Carolina State Treasurer shall
accompany each additional program
approval request.

(h) Single course additions or revisions
may be individually approved when
schools submit a request for license
amendment. Course additions or revi-
sions requiring extensive curriculum
review, instructor evaluation, and
equipment site assessment are subject to
the curriculum review fee of one hun-
dred dollars ($100.00).

(c) School relocations require site visits
and approvals prior to site relocations.
A check or money order in the amount
of two hundred dollars ($200.00) made
payable to the North Carolina State
Treasurer shall accompany each site
relocation approval request.

Statutory Authority
U5D-91.

.0102

G.S. 115D-89; 115D-90;

APPLICATION FOR RENEWAL OF
LICENSE

(a) Schools shall be licensed annually, and the
licensure shall extend from July 1 through June
30, inclusive.

(b) Schools desiring the renewal of their license
shall submit an application on or before June 1 of
each year in the form and manner prescribed by
the State Board . The application shall be accom-
panied by the following;

(1) All information required of schools
applying for an original license that has
not been previously submitted;

(2) Copy of current catalogue containing all
information required of schools apply-
ing for original license;

(3) Any supplementary information neces-
sary to bring information on the school
up to date.

(c) A check in the amount of five hundred
dollars ($500.00) to the North Carolina State
Treasurer, shall be received on or before July J_^

Statutory Authority G.S. 115D-91; 115D-92.

.0103 SCHOOL PLANT AND EQUIPMENT

(a) The school plant, premises, and facilities
must be adequate, safe, and sanitary and must be
in compliance with the statutory provisions and the
rules and regulations of all local ordinances per-
taining to fire, health, safety , and sanitation.

(b) The equipment, supplies, and instructional
materials of the school must be satisfactory and
adequate in type, quality, and amount, and must be
suitable for satisfactory use in administering the
course or courses of instruction. TTiese must also
meet all requirements of statutory provisions and
local ordinances, and rules and regulations adopted
thereunder in regard to fire, health, safety, and
sanitation.

Statutory Authority G.S. 115D-89; 115D-90.

.0104 ADMIMSTRATION

(a) One person must be designated as the direc-
tor of the school or branch thereof. The director
must be qualified in accordance with the require-
ments established by the State Board.

(b) The director or administrator is defined to be
a person directly responsible for the school pro-
gram, the methods of instruction, the employment
of teachers, the organization of classes, the mainte-
nance of the school plant and the equipment, the
advertising used, and the maintenance of proper
administrative records and all other procedures
related to the administration of the school or class.

(1) Be a person of good moral character;

(2) Be a graduate of an approved college or
university;

(3) Have experience as a teacher in one or
more of the major subjects taught in the
school which one is to administer;

(4) Directors and administrators who pos-
sess qualifications which are substan-
tially equivalent to the requirements
prescribed herein for directors may
individually be approved by the North
Carolina State Board of Community
Colleges.

Statutory Authority' G.S. 115D-87; 115D-90.

.0105 ADVERTISING

(a) A licensed school shall not advertise through
any media that it offers courses that the school has
not been licensed to offer.

(b) Printed catalogues, bulletins, or prospectus
information must be specific with respect to pre-
requisite training required for admission to the
school courses, the curricula, the contents of
courses, graduation requirements, tuition and other
fees, refunds and allowances for withdrawals and
unavoidable or extended absences.

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1600

PROPOSED RULES

(c) Schools shall not use any name, title, or
other designation, by way of advertising or other-
wise, that is misleading or decepti\ e as to charac-
ter of the institution, or its influence in training
emplo\ment for students. Schools shall be degree
granting or accredited as a junior college of busi-
ness in order to delete "business" from the name
of the school.

(d) Schools shall not use a photograph, cut.
engra\ing. or illustration in catalogues, sales
literature, or otherwise m such a manner as to
con\'ev a false impression as to the size, impor-
tance, or location of the school's equipment.

(e) Schools shall not use endorsements, com-

mendations, or recommendations by students m
favor of a school unless it is with the consent of
the writer and without any offer of financial

compensation. Such material shall be kept on file
by the school.

(f) Schools shall publish tuition rates, payment
method, and refund policy in their catalogues or
on separate rate sheets and shall not dev'iate from
these rates and policies.

(g) Schools shall not make, cause, permit to be
made, or publish any false, untrue, or deceptive
statement or representation by wa\' of advertising
or otherwise concerning other private business
schools or their acti\ities in attempting to enroll
students or concerning the character, nature,
quality, value, or scope of any course of instruc-
tion or education service offered or in any other
material respect.

fh) A school or class shall not solicit students to
enroll by means of "blind" advertisements or
ad\'ertisements in the "help wanted" or other
employment columns of newspapers and publica-
tions.

(i) Schools shall not make false, untrue, or
deceptive statements of representatives regarding
the opportunities in any vocation or field of activi-
ty as a result of the completion of any given
course of instruction or educational service.

Statutory Authority G.S. 1I5D-90.

.0106 AD^^SSION REQUIREMENTS

(a) The admission requirements must be pub-
lished and administered as written.

(bi The school shall require graduation from
high school as a prerequisite to enrollment in a
diploma or degree course offered by the school.
Exceptions to this requirement may be made for
students who hold a certificate of high school
equivalency issued by the North Carolina Commu-
nity College System or for non-high school gradu-

ates who are 18 years of age or older who have
demonstrated the ability to benefit as determined
by accepted test instruments. The school shall not
permit students of high school age to attend the
school during the time that high schools are in
regular session, except in individual cases ap-
proved by the student's high school principal. The
school shall maintain records in the student's file
to show compliance with admission requirements.
(c) The school may admit students to special
courses or subjects offered by the school that the
school deems the student can profit from the
instruction offered.

Statutory Authority G.S. 115D-90.

.0107 RECORDS

(a) The school shall maintain current, complete,
and accurate records to show the following:

(1) The student's educational and personal
background, age, and other personal
characteristics that will be helpful to
prospective employers.

(2) Progress and attendance including date
entered, dates attended, subjects stud-
ied, and time; this record shall be in a
form which permits easy and accurate
preparation of transcripts of educational
records for purpose of transfer and
placement, providing reports to govern-
ment seryices or agencies, or for such
other purposes as the needs of the
student might require. Such transcripts
shall be in the form readily understand-
able by lay persons and educators alike.
The grading system on such transcripts
shall be fully explained on the transcript
form. Subjects appearing on the tran-
scripts shall be numbered or otherwise
designated to indicate the exact subject
matter covered. Skills and proficiency
in subjects measured by words per
minute shall be described fully by the
type of test and other conditions of the
test by which such skills and
proficiencies were scored.
All monies owed and paid by each
student.

13)

(b) Records of students shall be open for inspec-
tion by properly authorized officials of the State
Board.

(c) Financial records of the school shall be open
for inspection by properly authorized officials of
the State Board when information is furnished the

1601

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PROPOSED RULES

Board of its authorized officials which tends to
show the financial status of the school is unstable.

Statutory Authority G.S. 115D-90.

.0108 INSTRUCTIONAL PROGRAM

(a) The school shall limit its offering in diploma
and degree courses and special subjects to the
courses and subjects for which it has been licensed
to offer. At the beginning of each quarter, each
school shall post the schedule of subjects begin
offered during the quarter. This schedule will
show the time and teacher for each subject and
designate the room in which the subject will be
taught. Each student shall be given a written
schedule of classes at the beginning of each quarter
to show the student's individual schedule.

(b) Schools shall not publish rn their catalogues
courses which they have not been licensed to offer.
When a school is licensed to offer a course and
enrolls students in the course, the school shall
maintain sufficient and qualified faculty to teach all
subjects required for completing the course during
the time stipulated in the school's bulletin as the
required time to complete the course and shall
schedule classes so that the students will be able to
receive instruction in all subjects for the number of
instructional hours as advertised in the school's
bulletin under which the students enrolled. When
a school previously licensed to offer a course fails
to maintain the qualifications for continuing the
course, the course shall be removed from the
catalogue or stamped "not offered . "

(c) The number of curricula offered by a school
shall be realistic in relationship to faculty and
student enrollment. As a general rule, the number
of curricula offered shall not exceed the number of
faculty employed on a full-time basis.

(d) The school shall arrange its calendar one
calendar year in advance and give full information
to prospective and enrolled students about holi-
days: beginning and ending dates of each quarter,
term, or semester; and other important dates .

(e) Schools may measure instruction on a clock-
hour or credit-hour basis. The catalogue shall
provide a clear definition of the method used. The
school catalogue must show the number of clock
hours or credit hours for each subject offered and
the minimum clock hours or credit hours a student
must carry for full-time enrollment. Courses
offered on a credit-hour basis must show class
hours, laboratory hours, and credit hours.

(f) Student teacher ratio shall not exceed 30 to
1.

(g) Class period shall permit a minimum of 50
minutes net instruction.

(h) Diplomas and degrees shall be issued only
upon completion of a standard diploma or degree
course.

(i) Students enrolled diploma or degree pro-
grams shall not be enrolled except at the beginning
of each quarter or term.

Statutory Authority G.S. 115D-90.

,0109 INSTRUCTOR PERSONNEL

(a) An application for approval to teach in a
licensed proprietary business, trade, or technical
school must be made on forms provided for this
purpose. Such application must be filed immedi-
ately when the teacher commences teaching in a
proprietary business, trade, or technical school.

(b) A teacher must be found to be qualified by
education and experience background and must
meet the following qualifications as minimum
requirements:

(1) Be a person of good moral character;

(2) Be at least 21 years of age;

(3) Be a graduate of a standard college or
university and hold a baccalaureate
degree or meet the requirements of
other occupational licensing or approval
bodies requested to approve instructor
adequacy. Exceptions may be made on
a case by case basis requiring prior
approval by the State Board, acting by
and through the System President.

Statutory Authority G.S. 115D-90.

.0110 FINANCIAL STABILITY

(a) The school shall have sufficient finances to
establish and carry out a satisfactory program of
education on a continuing basis.

(b) The school shall maintain a satisfactory
credit rating.

Statutory Authority G.S. 115D-90.

.0111 ETHICS

(a) Schools must not offer premiums or special
inducement to prospective students or enroUees.
Scholarships may be offered provided terms of
scholarship are published and approved by the
State Board of Community Colleges.

(b) Failure to maintain tuition rates as published
is grounds for suspension or revocation of tlie
license of a school.

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1602

PROPOSED RULES

(c) No officer or representative of the school
shall solicit any student to leave any school ]n
which enrolled or in attendance.

(d) A school representative thereof must not
guarantee positions or employment to prospective
students.

Statutory Authority G.S. 115D-90: U5D-93.

.0112 REVOKING A LICENSE

The license of a proprietary business, trade, or
technical school may be revoked when it js found
that the school has failed to comply with the
requirements of the law and the rules and regula-
tions adopted by the State Board. A school shall
be notified by registered mail when it is believed
to be in violation of the law or the rules and
regulations made pursuant to the law and such
notice shall be addressed to the director of the
school at the address of the school as shown by the
records of the State Board. An opportunity to be
heard shall be provided upon written request by
the school or any owner or official thereof within

15 days of the mailing of said registered letter, and
said request shall be addressed to the State Board
of Community Colleges. Raleigh. North Carolina.
If it is found and determined after a hearing that
the school is in violation of the law or the rules
and regulations of tlie State Board and it is the
decision of the State Board that the license shall be
revoked, a written notice of this action shall be
mailed to the director of the school by registered
mail and said revocation shall be effective upon
the date of final action of the State Board.

Statutory Authority G.S. 115D-93.

.0113 AMENDING REGULATIONS

The State Board reserves the right to amend
these Rules from time to time in accordance with
the requirements of the Administrative Procedures
Act.

Statutory- Authority G.S. 115D-89.

.0114 BUSINESS SCHOOL; SPECIFIC
REGULATIONS

(a) Associate in Applied Science Degree. Note:
This degree may be awarded upon licensure by the
Board of Goyemors of the University of North
Carolina.

(b) Curricula requirements:

(1) Accounting zz 108 credit hours or
clock-hour equi\'alent:

(2) Advanced secretarial — 54 credit hours
or clock-hour equivalent;

(3) Airline secretarial zi 54 credit hours or
clock-hour equivalent;

(4) Automated accounting 21 12. credit
hours or clock-hour equivalent;

(5) Business administration - 108 credit
hours or clock-hour equivalent;

(6) Electronic data processing — 54 credit
hours or clock-hour equivalent;

(7) Executive secretarial ;; 90 credit hours
or clock-hour equivalent;

£8) Fashion merchandising ;; 54 credit
hours or clock-hour equivalent;

(9) General business zz 54 credit hours or
clock-hour equivalent;

(10) Junior accounting — 12 credit hours or
clock-hour equivalent;

(11) Legal secretarial — 90 credit hours or
clock-hour equivalent;

(12) Medical secretarial -- 90 credit hours or
clock-hour equivalent;

(13) Professional accounting — 108 credit
hours or clock-hour equivalent;

(14) Professional secretarial — 108 credit
hours or clock-hour equivalent;

(15) Secretarial ^z 12. credit hours or clock-
hour equivalent;

(16) Stenographic 21 54 credit hours or
clock-hour equivalent;

(17) Transportation management — 108
credit hours or clock-hour equivalent.

(c) Other courses may be individually approved
as special courses when schools desiring to offer
other courses submit a formal application for
approval of such courses and are found to have
met the requirements for offering the courses.

(d) Interim acceptance of the formal supplemen-
tary a pplication for other courses may be granted
at the discretion of the System President when a
certified statement of intent to furnish qualified
instructional personnel and necessary instructional
equipment upon the commencing of the initial
instruction and/or "hands-on" training is furnished
by the applying institution, which institution shall
have been duly licensed and in continuous opera-
tion for five or more years. The certified state-
ment of intent shall also include a provision to
return all monies paid, including any confirming
or initial application fee paid by prospective
enroUees in the event the course does not material-
ize upon the advertised beginning date.

Statutory- Authority- G.S. 115D-90.

1603

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PROPOSED RULES

SECTION .0200 - CORRESPONDENCE
SCHOOLS

.0201 LICENSING PROPRIETARY

CORRESPONDENCE SCHOOLS

(a) Basic Information Concerning Licensing
Proprietary Correspondence Schools.

(1) After July L, 1959, no correspondence
school located in North Carolina shall
solicit students or collect fees until a
license has been granted by the State
Board.

(2) The receipt of a license is assurance to
the officials of a correspondence school
and to the students that the school
meets the standards of the State Board
and that it has the legal right to operate.

(3) The issuing of' a license to a correspon-
dence school does not accredit the
courses offered as valid for transfer to
any other school or college in North
Carolina.

(41

(5)

16}

17]

18}

19}

An application for a license shall be
filed with the State Board on a form
prescribed by the State Board. Such
forms will be forwarded on request.
The State Board may request that other
state occupational licensing or approv-
ing bodies approve the adequacy of
programs, equipment, and personnel
during the preliminary application
phase.

A correspondence school located in
North Carolina when approved may in
its advertising use the following state-
ment: "Licensed by the North Carolina
State Board of Community Colleges."
The fee for the initial issue of a license
is seven hundred and fifty dollars
($750.00) made payable to tlie North
Carolina State Treasurer \n the form of
a check or a money order.
A license is renewable annually upon
payment of a fee of five hundred dol-
lars ($500.00). Fees must be made
payable to tlie North Carolina State
Treasurer.

Any license may be revoked for a good
cause after a hearing.
The school must post a guaranty bond
in tlie maximum amount of prepaid
tuition or at least ten thousand dollars
($10,000) or a guaranty bond alterna-
tive in ttie manner and form prescribed.

in conformity with North Carolina
General Statutes, Chapter 115D-95.

(A) Applicants unable to secure a guaran-
ty bond may seek a waiver of the
bond from the State Board and ap-
proval of one of the bond alternatives.

(B) Bond alternatives may be in the form
of an assigned savings account or a
certificate of deposit with a state or
federal savings and loan association.
a state bank, or a national bank which
is licensed to do business rn North
Carolina and is insured by a federal
depositors corporation.

(1 1) A person or persons purchasing a cor-
respondence school already operating as
a licensed school shall comply with all
of tlie requirements for securing an
original license. A license is not trans-
ferable to a new owner. All application
forms and other data will Ije submitted
in full. Such terms "previously submit-
ted" when referring to a former
owner's file will not be acceptable.

(12) A temporary operating license, not to
exceed 90 days, may be issued to a
school upon its sale if the school held a
valid license prior to the sale and if
evidence indicates that it is likely to
qualify for a license after the sale .

Statutory Authority G.S. 1150-87; 115D-91;
U5D-95; 115D-96.

.0202 STANDARDS

(a) Name of School.

The name of tlie school
shall be descriptive of fts function or functions.
Any word or words which suggest an official
relation with a municipality or with the state shall
not be used. Any change in the name of an
approved school shall be registered with the State
Board.

(b) Location of the School. A school is ap-
proved for a specific location. Any change in the
location of the school shall have the prior approval
of the State Board as to adequacy of facilities.

(1) Each correspondence school shall have
an executive head. The executive head
of the school shall present evidence that
one has the qualifications and the expe-
rience for competent and ethical admin-
istration of a correspondence school.

(2) The executive head of a correspondence
school shall have the administrative

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NORTH CAROLINA REGISTER

November 2, 1992

1604

PROPOSED RULES

assistance necessary for adequately
manning the school and effectively
coordinating the work of the teachers.

(3) Each private correspondence school
located in North Carolina shall furnish
such information and reports from time
to time as the State Board shall deem
necessary and proper and m the manner
and on forms prescribed by the State
Board. Failure to furnish any such
information or report or to conform in
every particular to standards prescribed
for such proprietary correspondence
school shall be good and sufficient
reason for the refusal or a license for
such proprietai"y correspondence school
or for the revocation of a license previ-
ously granted.

(4) Changes in application information
presented for licensure or relicensure
relating to mission, program, location,
or stock distribution require prior ap-
proval and amendment to licensure by
the State Board.

(5) Program additions require curriculum
reviews and approvals prior to initia-
tion. A check or money order in the
amount of one hundred dollars
($100.00) made payable to the North
Carolina State Treasurer shall accompa-
ny each additional program approval
request.

(6) Single course additions or revisions
may be individually approved when
schools submit a request for license
amendment. Course additions or revi-
sions requiring extensive curriculum
review and instructor, equipment,
and/or site assessment are subject to the
curriculum review fee of one hundred
dollars ($100.00).

(7) School relocations require site visits
and approvals prior to site relocations.
A check or money order jn the amount
of two hundred dollars ($200.00) made
payable to the North Carolina State
Treasurer shall accompany each site
relocation approval request.

Statuton Aurhorin- G.S. 115D-87; 1150-89:
1150-90: 1150-91: 1150-92: 1150-93: 1150-96.

.0203 ORGANIZATION AND NATURE OF
CORRESPONDENCE COURSES

Each course of instruction offered shall consist of
the following:

(1) A preliminary lesson or set of instruc-
tions on "how to study" by the home-
study method or adequate instruction on
how to study each lesson assignment.

£2} Textual or lesson materials which are:

(a) Adequate in that they cover the subject
as fully and as thoroughly as an-
nounced;

(b) Accurate in that they are well authenti-
cated;

(d) Presented in a simple, clear, interest-
ing, and logical manner so that the
students can grasp the important points
readily:

(e) Illustrated with photographs, cuts, and
drawings which clarify the explanations
and not simply adorn the text;

(f) Printed in such a manner as to contrib-
ute to ease of study.

£3) Instructional service on each lesson or
unit assignment consisting of:

(a) A series of examination questions or
problem assignments which thoroughly
stress the important phases of the sub-
ject presented and which require a
demonstration of the student's ability or
skill in applying the information se-
cured;

(b) An individualized correctional service
pointing out the errors, directing the
student to sources of correct informa-
tion, as well as supplying additional
explanations and supplementary instruc-
tional material when necessary.

Statutory Authority G.S. U5D-89: 1150-90.

.0204 INSTRUCTION

A supervisor of correspondence instruction is a
person responsible for grading the papers sent to
the school by the students and for guiding the
students in their study.

( 1) Each approved correspondence school m
North Carolina shall maintain an ade-
quate and competent instructional staff.

(2) The individualized correctional service
shall be assigned to a supervisor or su-
pervisors of correspondence instruction
who shall have as a minimum the follow-
ing educational preparation and experi-
ence:

1605

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PROPOSED RULES

(a) A high school education and a combina-
tion of at least six years of higher
education, teaching, and experience
closely related to the subjects to be
taught. This standard shall not operate
to prevent the employment of compe-
tent assistants without these qualifica-
tions to grade papers under direction
of an approved supervisor of correspon-
dence instruction; and
(h) A knowledge of educational psychology
and methods as those subjects apply to
the courses to be taught.
(3) Each supervisor of correspondence in-
struction shall be approved by the State
Board. An approved correspondence
school located in North Carolina may
employ for a period not to exceed 60
days a supervisor of correspondence
instruction who has not yet obtained
approval by the State Board. Any super-
visor of correspondence instruction so
employed shall obtain approval by the
State Board for the particular assignments
concerned within 60 days. In applying
for approval of supervisors, correspon-
dence schools shall use a form provided
by the State Board to show for each
supervisor concerned the following:

(a) Educational background and attain-
ments;

(b) Work related to the courses concerned;

Statutory Authority G.S. 115D-90.

.0205 FINANCIAL STABILITY

Each correspondence school located jn North
Carolina shall annually demonstrate to the satisfac-
tion of the State Board that it has financial resourc-
es sufficient to carry out the program of instruction
submitted for approval. Each school shall main-
tain detailed records. These records shall be
subject to inspection by the State Board or its
representatives.

Statutory Authority: G.S. 115D-90.

.0206 THE OFFICIAL BULLETIN OR
CATALOGUE

Each correspondence school located m North
Carolina shall from time to time issue a printed
bulletin which shall clearly indicate that it is an
institution offering courses by correspondence. Its

statements shall set forth the obligations of both
the school and the students. The bulletin shall
show the following:
(I) The name and location of the school;

The name of the executive head of the

school;

£2)
13]

A description of the lessons and the
courses offered; Upon approval of the
State Board, this standard may be met by
publishing a description of the courses
offered as a bulletin separate from the
catalogue.

(4) The fees and tuition charges; A corre-
spondence school may meet this standard
by publishing separately its Hst of fees
and charges provided an up-to-date list of
such fees and charges is kept filed with
the State Board.

(5) Requirements for graduation;

(6) The maximum time allowed for complet-
ing each course.

Statutory Authority G.S. 115D-90.

.0207 RESPONSIBILITY FOR PERSONNEL
AND AGENTS

Each school shall be accountable for the acts of
its licensed solicitors and filed representatives as
these acts affect the rights of students or prospec-
tive students. Each proprietary correspondence
school located jn North Carolina shall give its
sales representatives adequate preliminary training
and exercise careful supervision to guard against
any misrepresentation to prospective students and
to prevent the enrollment of pupils who lack
qualifications for probable success in completing
the course concerned.

Statutory Authority G.S. 115D-90.

.0208 CONTRACT WITH STUDENT

The contract to be approved shall enumerate the
following:
(1) The total cost to the student;

The initial payment at the time of regis-
tration;

(21
£3)

TTie amounts of subsequent payments and
a statement specifying when the payments
are due;

(4) A list of the books, supplies, and equip-
ment, if any, to be furnished by the
correspondence school;

(5) A list of the books, supplies, and equip-
ment, if any, which the student must

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NORTH CAROLINA REGISTER

November 2, 1992

1606

PROPOSED RULES

i6j

purchase in addition to those provided by

the correspondence school;

All other charges, if any, which the

school may make such as fees for a

diploma or for graduation;

The terms of settlement for the student

who desires to discontinue his enrollment

and withdraw from the school;

The terms of settlement for the student
who is dropped by the school; these
terms must be found to be satisfactory by
the State Board;

The particulars concerning instruction
during completion periods in schools,
shops, or laboratories provided such
instruction is offered.

Statutory Authority G.S. 1150-90.

.0209 RESIDENT TRAINING

Resident training in shops, schools, or laborato-
ries may be offered by correspondence schools
located in North Carolina provided the shop,
school, or laboratory concerned is approved by the
State Board as adequate for the courses offered. If
a correspondence school located [n North Carolina
advertises as a part of a course a completion
period in a school, shop, or laboratory, then the
contract shall specify:

(1 ) The basis for qualifying as a student for
admission to the shop, laboratory, or
school for the completion period con-
cerned;

(2) The location of such shop, laboratory, or
school;

(3) The schedule of periods of instruction in
such shop, laboratory, or school;

(4) The number of days of instruction to
which the qualified student js entitled;

(5| A description of the facilities in the shop,
laboratory, or school concerned;

(6) The amount of additional tuition re-
quired, if any, for attendance at tlie shop,
laboratory, or school used for the com-
pletion period;

(7) The student's responsibility for paying
the cost of transportation to and from the
shop, laboratory, or school where the
completion period is scheduled;

(8) The student's responsibility for paying
the cost of room and board while in
attendance during the completion period;

(9) A Mst of books, supplies, and tools, if
any, which will be furnished by the
school for use by the student while in

attendance during the completion period
and the rental cost, if any, for the use of
such books, tools, and supplies;
(10) A list of any additional tools, equipment,
work, clothing, books, or other items
which must be purchased by the student
for use during the completion period.

Statutory Authority G.S. 1150-90.

.0210 STANDARDS FOR ENROLLMENT

Each correspondence s chool located in North
Carolina shall either:

(1) Establish and print standards of educa-
tional achievement which students shall
attain before enrolling for each course
offered; or

(2) Begin each course with simple basic
reading and illustrations which lead grad-
ually to the more advanced lessons.

Statutory Authority G.S. 1150-90.

.0211 RECORDS

A summary of the student's educational achieve-
ment shall be recorded on a form planned for that
purpose. These records shall be retained by the
school for a period of at least 20 years.

Statutory Authority G.S. 1150-20.

.0212 UNFAIR PRACTICES

Each correspondence school to which is awarded
a North Carolina license shall comply with the
procedures and practices enumerated in "Guides
for Private Vocational and Home Study Schools,"
16 CFR part 254 approved by the Federal Trade
Commission. May 16. 1972. and as amended from
time to time.

Statutory Authority G.S. 1150-90.

.0213 REVOKING A LICENSE

The license of a correspondence school located in
North Carolina may be revoked if the State Board,
after a hearing, finds and determines:

That the school concerned has failed to

ill

(2)

observe any of the guides set forth in the
"Guides for Private Vocational and Home
Study Schools." 16 CFR part 254 ap-
proved by the Federal Trade Commis-
sion. May 16. 1972. or lias violated any
official amendments to these rules;
That the school concerned has not com-
plied with the requirements of tlie North

1607

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NORTH CAROLINA REGISTER

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PROPOSED RULES

Carolina law or the standards which are
ofFicially approved by the State Board of
Community Colleges for North Carolina
correspondence schools; a school shall be
notified by registered mail when k is
believed to be in violation of the law or
the rules and regulations made pursuant
to the law and such notice shall be ad-
dressed to the director of the school at
the address of the school as shown by the
records of the State Board. An opportu-
nity to be heard shall be provided upon
written request by the school or any
owner or official thereof made within 15
days of the mailing of said registered
letter, and said request shall be addressed
to the State Board of Community Colleg-
es. Raleigh. North Carolina. if ll is
found and determined after a hearing that
the school is in violation of the law or
the rules and regulations of the State
Board and it is the decision of the State
Board that the license shall be revoked, a
written notice of this action shall be
mailed to the director of the school by
registered mail and said revocation shall
be effective upon the date of final action
for the State Board.

Statuton' Authority G.S. 115D-93.

.0214 APPLICATION FOR RENEWAL OF
LICENSE

(a) Schools shall be licensed annually, and the
licensure shall extend from July \ through June
30. inclusive.

(b) Schools desiring the renewal of their license
will submit an application on or before June f each
year in the form and manner prescribed by the
State Board. The application shall be accompanied
by the necessary data to bring the information on
the school up to date.

(c) A check in the amount of five hundred
dollars ($500.00) made payable to the North
Carolina State Treasurer shall be submitted on or
before July J^

Statutory Authority G.S. 115D-91; I15D-92.

7:15 NORTH CAROLINA REGISTER November 2, 1992 1608

RRC OBJECTIONS

1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S.
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d).

ADMINISTRATION

Motor Fleet Management Division

1 NCAC 38 .0205 - Accident Reporting

Agenc}- Revised Rule

AGRICLXTURE

Structural Pest Control Division

2 NCAC 34 .0406 - Spill Control

Agency Responded

Agency Revised Rule
2 NCAC 34 .0603 - Waivers

Agency Responded

Agency Revised Rule
2 NCAC 34 .0902 - Financial Responsibility

Agency Responded

Agency Revised Rule

ECONO\nC AND COMMUNITl DEVELOPMENT

RRC Objection
Obj. Removed

RRC Objection
No Action
Obj. Removed
RRC Objection
No Action
Obj. Removed
RRC Objection
No Action
Obj. Removed

09/17/92
10/15/92

07/16/92
08/20/92
10/15/92
07 n 6/92
08/20/92
10/15/92
07/16/92
08/20/92
10/15/92

Community Assistance

4 NCAC 19S .0101 - Overview and Purpose
4 NCAC 19S .0102 - Definition
4 NCAC 19S .0103 - Waiver
4 NCAC 19S .0202 - Prohibited Costs
4 NCAC 19S .0401 - Distribution of Funds
4 NCAC 19S .1101 - Grant Agreement
Agency Revised Rule

ENVIRONIVIENT. HEALTH. AND NATLTIAL RESOLTICES

Departmental Rules

15.4 NCAC IJ .0204 - Loans from Emergency Revolving Loan Accounts

15A NCAC IJ .0302 - General Provisions

15A NCAC IJ .0701 - Public Necessity: Health: Safety and Welfare

Environmental Management

15A NCAC 2H .0801 - Purpose

Agenc}' Revised Rule
15A NCAC 2H .0803 - Definitions

Agenc}' Revised Rule
15A NCAC 2H .0805 - Certification and Renewal of Certification

RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection
Obj. Removed

10/15/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92

RRC Objection 06/18/92
RRC Objection 06/18/92
RRC Objection 06/18/92

RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection

10/15/92
10/15/92
10/15/92
10/15/92
10/15/92

1609

7:15

NORTH CAROLINA REGISTER

November 2, 1992

RRC OBJECTIONS

Agency Revised Rule
J5A NCAC 2L .0107 - Compliance Boundary

Agency Revised Rule
15A NCAC 20 .0302 - Self Insurance

Wildlife Resources and Water Safety

15A NCAC 101 .0001 - Definitions
HUMAN RESOURCES

RRC Objection 10/15/92

Obj. Removed 10/15/92

RRC Objection 06/18/92

RRC Objection 10/15/92

Facility Services

10 NCAC 3 R .3001 - Certificate of Need Review Categories
Agency Revised Rule

Individual and Family Support

10 NCAC 42C .3601 - Administrative Penalty Determination Process

Agency Revised Rule
10 NCAC 42T . 0001 - Definitions
10 NCAC 42T .0006 - Service Delivery

Agency Revised Rule

Mental Health: General

10 NCAC 14C .1115 - Funding Group Homes for Mentally Retarded Adults

Agency Revised Rule
10 NCAC 14K .0216 - Waiver of Licensure Rules

Agency Revised Rule
10 NCAC 14T.0101 - Scope

Agency Revised Rule
10 NCAC 14T .0103 - Advance Care Directives

Agency Revised Rule

Mental Health: Other Programs

10 NCAC 18D .0117 - Purpose and Scope
Agency Revised Rule

INDEPENDENT AGENCIES

RRC Objection
Obj. Removed

RRC Objection
Obj. Removed
RRC Objection
RRC Objection
RRC Objection

RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed

RRC Objection
Obj. Removed

10/15/92
10/15/92

10/15/92
10/15/92
10/15/92
10/15/92
10/15/92

08/20/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92

10/15/92
10/15/92

N.C. Housing Finance Agency

24 NCAC IM .0202 - Eligibility

24 NCAC IM .0204 - Selection Procedures

24 NCAC IM .0205 - Administration

24 NCAC IM .0206 - Program Fees

24 NCAC IM .0301 - Goal and Objectives

24 NCAC IM .0302 - Eligibility Requirements

24 NCAC IM .0303 - Tlireshold Review Criteria

24 NCA C IM . 0306 - Funding Commitment

24 NCAC IM .0401 - Goals and Objectives

24 NCAC IM .0402 - Eligibility Requirements

24 NCAC IM .0403 - Threshold Review Criteria

RRC
RRC
RRC
RRC
RRC
RRC
RRC
RRC
RRC
RRC
RRC

Objection
Objection
Objection
Objection
Objection
Objection
Objection
Objection
Objection
Objection
Objection

10/15/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1610

RRC OBJECTIONS

24 NCAC IM .0404 - Ranking Criteria

24 NCAC IM .0405 - Agency Board Approval

24 NCAC lO .0101 - Purpose

24 NCAC lO .0102 - Eligibility

24 NCAC lO .0201 - Application Procedures

24 NCAC lO .0202 - Selection Procedures

24 NCAC lO .0203 - Administration

INSURANCE

Multiple Employer Welfare Arrangements

// NCAC 18 .0019 - Description of Forms
Seniors' Health Insurance Information Program

11 NCAC 17 .0005 - SHIIP Inquiries to Insurers and Agents
JUSTICE

General Statutes Commission

12 NCAC 8 .0506 - Declaratory Rulings
LABOR

Occupational Safety and Health Act

13 NCAC 7C .0108 - Building Code

Rule Returned to Agency
Agcmy Filed Rule with OAH
13 NCAC 7C .0109 - Fire Prevention Code
Rule Returned to Agency
Agency Filed Rule with OAH

LICENSING BOARDS AND COMMISSIONS

Professional Engineers and Land Surveyors

21 NCAC 56 .0501 - Requirement for Licensing

Agency Revised Rule
21 NCAC 56 .0502 - Application Procedure: Individual

Agency Revised Rule
21 NCAC 56 .0701 - Rules of Professional Conduct

Agency Revised Rule
21 NCAC 56 .1603 - Classification of Surveys

Agency Revised Rule
21 NCAC 56 . 1604 - Mapping Requirements

Agency Revised Rule
21 NCAC 56 . 1605 - Classification of Topographic Surveys

Agency Revised Rule

REVENUE

Individual Income, Iidieritance and Gift Tax Division

RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection

10/15/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92

RRC Objection 06/18/92

RRC Objection 10/15/92

RRC Objection

Ejf.
RRC Objection

09/1 7/92
10/15/92
10/22/92
09/17/92
10/15/92
Eff. 10/22/92

RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed

10/15/92
10/15/92
10/15/92
W/15/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92
10/15/92

1611

7:15

NORTH CAROLINA REGISTER

November 2, 1992

RRC OBJECTIONS

17 NCAC 3B

0401
0402

Penalties
Interest

RRC Objection
RRC Objection

08/20/92
08/20/92

Individual Income Tax Division

17 NCAC 6B .0107 - Extensions

17 NCAC 6B .0115 - Additions to Federal Taxable Income

17 NCAC 6B .0116 - Deductions from Federal Taxable Income

1 7 NCA C 6B .0117 - Transitional Adjustments

1 7 NCA C 6B . 3406 - Refunds

TRANSPORTATION

RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection

08/20/92
08/20/92
08/20/92
08/20/92
08/20/92

Division of Highways

19A NCAC 2B .0164 - Use of Right of Way Consultants

Agency Revised Rule
19A NCAC 2B .0165 - Asbestos Contracts with Private Firms

Agency Revised Rule

RRC Objection 09/17/92

Obj. Removed 10/15/92

RRC Objection 08/20/92

Obj. Removed 10/15/92

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1612

CONTESTED CASE DECISIONS

1 his Section contains the full text of some of the more significant Administrative Law Judge decisions
along with an index to all recent contested cases decisions which are filed under North Carolina 's
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available
upon rct/ucst for a minittud charge by contacting the Office of Administrative Hearings. (919) 733-2698.

KEY TO CASE CODES

ABC Alcoholic Beverage Control Commission DST

BDA Board of Dental Examiners EDC

BME Board of Medical Examiners EHR

BMS Board of Mortuar>' Science

BOG Board of Geologists ESC

BON Board of Nursing HAP

BOO Board of Opticians HRC

CFA Commission for Auctioneers IND

COM Department of Economic and Community INS

Development LBC

CPS Department of Crime Control and Public Safety MLK

CSE Child Support Enforcement NHA

DAG Department of Agriculture OAH

DCC Department of Community Colleges OSP

DCR Department of Cultural Resources PHC

DCS Distribution Child Support

DHR Department of Human Resources POD

DOA Department of Administration SOS

DOJ Department of Justice SPA

DOL Department of Labor

DSA Department of State Auditor WRC

Department of State Treasurer
Department of Public Instruction
Department of Environment, Health, and
Natural Resources
Employment Security Commission
Hearing Aid Dealers and Fitters Board
Human Relations Committee
Independent Agencies
Department of Insurance
Licensing Board for Contractors
Milk Commission

Board of Nursing Home Administrators
Office of Administrative Hearings
Office of State Personnel
Board of Plumbing and Heating
Contractors

Board of Podiatry Examiners
Department of Secretary of State
Board of Examiners of Speech and Language
Pathologists and Audiologists
Wildlife Resources Commission

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Anne R. Gwaltney. Milton H. Askew. Jr.

and Anna L. Askew

EHR and Pamlico County Health Department

89 DHR 0699

Reilly

07/17/92

Eleanor R. Edgerton-Taylor

Cumberland County Department of Social Services

89 OSP 1141

Morrison

08/18/92

Annette Carlton

Cleveland County Department of Social Services

90 OSP 0024

Chess

08/14/92

Janice Parker Haughton

Halifax County Mental Health, Mental Retardation,
Substance Abuse Program

90 OSP 0221

West

08/18/92

1613

7:15

NORTH CAROLINA REGISTER

November 2, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Carolina Water Service, Inc.

EHR, Division of Environmental Management

90 EHR 0415

West

09/11/92

CSX Transportation, Inc.

Department of Environment, Health, & Natural Resources

90 EHR 0628

Reilly

07/17/92

Bruce Keeter

Beaufort County Health Department

90 EHR 0666

Morgan

07/28/92

R. Anthony White

Department of Human Resources

90 CSE 0756

Morgan

10/05/92

Christine Hill

Crime Victims Compensation Commission

90 CPS 0876

Morgan

08/24/92

Tommy D. Hunt

Department of Correction

90 OSP 1011

Morgan

10/05/92

Leslie W. Hall

EHR, Division of Marine Fisheries

90 EHR 1397

Gray

10/13/92

JHY Concord, Inc.

Department of Labor

90 DOL 1421

Morgan

07/28/92

Lick Fork Hills, Inc., Marion Bagwell, President

Department of Environment, Health, & Natural Resources

91 EHR 0023

Morgan

07/28/92

Albert J. Johnson

N.C. Victims Compensation Commission

91 CPS 0038

Morgan

07/28/92

Frank Beal, T/A Wild Wild West

Alcoholic Beverage Control Commission

91 ABC 0164

Morgan

09/10/92

William B. Holden

Department of Environment, Health, & Natural Resources

91 EHR 0176

Morgan

08/18/92

Brenda P. Price

North Carolina Central University

91 OSP 0219

Morrison

08/21/92

Century Care of Laurinburg, Inc.

DHR, Division of Facility Services, Licensure Section

91 DHR 0257

West

06/30/92

7:15

NORTH CAROLINA REGISTER

November 2, 1992 1614

CONTESTED CASE DECISIONS

CASE NAME

CASE
NLTVIBER

ALJ

FILED
DATE

Kenneth E. Fletcher

I'niversity of North Carolina at Greensboro

91 OSP 0315

Chess

09/15/92

Richard L. Gainey

Department of Justice

91 OSP 0341

Becton

08/10/92

Wade Charles Brown, Jr.

N.C. Crime Victims Compensation Commission

91 CPS 0345

Chess

07/08/92

Jackie Bruce Edwards

DHR, Western Carolina Center

91 OSP 0354

West

08/20/92

Central Transport, Inc.

Department of Environment. Health, & Natural Resources

91 EHR 0402

Morrison

09/25/92

Robert C. Howell

Department of Correction

91 OSP 0407

Morgan

08/26/92

Harvey Fertilizer and Gas Company

EHR. Division of Environmental Management

91 EHR 0446

Morgan

10/01/92

Charles E. Roe

Department of Environment, Health, & Natural Resources

91 OSP 0520

Nesnow

07/23/92

Jerry J. Parker

Department of Correction

91 OSP 0546

Morgan

08/26/92

Deborah Binkley

Crime Victims Compensation Commission

91 CPS 0561

Morgan

10/02/92

Air-A-Plane Corporation

Department of Environment, Health, & Natural Resources

91 EHR 0636

Nesnow

09/04/92

Lisa M. Reichstein

Office of Student Financial Aid, East Carolina University

91 OSP 0662

Nesnow

06/24/92

Hudson's "The Acres" Rest Home

DHR. Division of Facility Services, Licensure Section

91 DHR 0665

Chess

09/09/92

Bobby R. Graham

DHR. Caswell Center

91 OSP 0695

Nesnow

09/21/92

1615

7:15

NORTH CAROLINA REGISTER

November 2, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

DHR, Division of Facility Svcs, Child Day Care Section

Mary Goodwin, Jean Dodd, D/B/A Capital City Day Care

Center

91 DHR 0720

Morgan

07/30/92

Kenneth Helms

Department of Human Resources

91 OSP 0729

Chess

07/15/92

Lloyd C. Neely

Department of Correction

91 OSP 0756

Morgan

09/10/92

Alcoholic Beverage Control Commission

Daniels Investments. Inc., t/a Leather & Lace - East
4205 Monroe Road. Charlotte, N.C. 28205

91 ABC 0799

Mami

07/14/92

Zelma Babson

Brunswick County Health Department

91 OSP 0804

Gray

08/14/92

ACT-UP Triangle (AIDS Coalition to Unleash Power
Triangle. Steven Harris, and John Doe

Commission for Health Services of the State of N.C, Ron

Levine, as Assistant Secretary of Health and State Health

Director for EHR of the State of N.C, William Cobey, as

Secretary of EHR of the State of N.C. Dr. Rebecca

Meriwether, as Chief, Communicable Disease Control

Section of the N.C. EHR, Wayne Bobbitt, Jr., as Chief of

the HIV/STD Control Branch of the N.C. EHR

91 EHR 08 18

Becton

07/08/92

Jane C O'Malley, Melvin L. Cartwright

EHR and District Health Department Pasquotank-
Perquimans-Camden-Chowan

91 EHR 0838

Becton

07/02/92

Cheryl Veronica McNeal

Criminal Justice Education & Training Stds Comm

91 DOJ 0861

Morgan

09/22/92

Thomas E. Vass

James E. Long, Department of Insurance

91 INS 0876

Morrison

08/14/92

William Paul Fearrington

University of North Carolina at Chapel Hill

91 OSP 0905

Reilly

08/28/92

Olde Towne Partnership and Tryon Realty Co.

EHR, Division of Coastal Management

91 EHR 0909

Morrison

09/16/92

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1616

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Gerald R. Pruitt

Department of Correction

91 OSP 0933

Gray

09/14/92

Jones Grading & Fencing, Inc.

EHR, Solid Waste Management

91 EHR 0956
91 EHR 0324

Nesnow

09/28/92

Grotgen Nursing Home, Inc., Britthaven, Inc.

Certificate of Need Section, Div of Facility Svcs, DHR

91 DHR 0964
91 DHR 0966

Nesnow

07/06/92

Ralph E. Brown

Carla O'Konek, Department of Correction

91 OSP 0970

Morgan

10/07/92

Anthony J. Carter

DHR, Division of Social Services, CSE

91 CSE 0975

Nesnow

09/17/92

Ramona S. Smith, R.N.

N.C. Teachers'/St Emps" Comp Major Medical Plan

91 DST 0984

Chess

06/18/92

Jarrett Dennis Swearengin

DHR, Division of Social Services, CSE

91 CSE 0986

Becton

09/14/92

Charles H. Yates, Power of Attorney for Ruth Yates

N.C. TeachersVSt Emps' Comp Major Medical Plan

91 INS 1008

Reilly

08/21/92

John McMillan

DHR, Division of Social Services, CSE

91 CSE 1009

Reilly

10/01/92

Walter McGlone

DHR, Division of Social Services, CSE

91 CSE 1030

Morrison

07/13/92

William Oscar Smith

DHR, Division of Social Services, CSE

91 CSE 1042

Gray

07/24/92

William Watson

DHR, Division of Social Services, CSE

91 CSE 1047

Becton

07/08/92

Robert D. Daniels Jr.

DHR, Division of Social Services, CSE

91 CSE 1048

Morrison

08/27/92

Marie McNeill-Pridgen

Department of Environment. Health. & Natural Resources

91 EHR 1059

Nesnow

07/17/92

1617

7:15

NORTH CAROLINA REGISTER

November 2, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DAIE

Catawba Memorial Hospital

DHR, Div of Facility Svcs, Certificate of Need Section

and
Frye Regional Medical Ctr, Inc. and Amireit (Frye), Inc.

and

Thorns Rehabilitation Hospital Health Services Corp.

and

Frye Regional Medical Ctr, Inc. and Amireit (Frye), Inc.

DHR, Div of Facility Svcs, Certificate of Need Section

and

Thorns Rehabilitation Hospital Health Services Corp.

and

Catawba Memorial Hospital

91 DHR 1061
91 DHR 1087

Reilly

07/13/92

Edward R. Peele

Sheriffs' Education & Training Stds. Commission

91 DOJ 1092

Morrison

08/18/92

Charles Lawton Roberts

DHR, Division of Social Services, CSE

91 CSE 1097

Becton

09/14/92

William Torres

Dept of Justice, Lacy H. Thomburg, Attorney General

91 DOJ 1098

Morrison

08/07/92

Wade A. Burgess

DHR, Division of Social Services, CSE

91 CSE 1114

Gray

07/01/92

Devoux A. Olliver

Department of Human Resources, O' Berry Center

9] OSP 1151

Gray

09/30/92

Sammie L. Anderson

DHR, Division of Social Services, CSE

91 CSE 1155

Mann

09/01/92

Harry L. King

Department of Transportation

91 OSP 1162

Morgan

07/13/92

Bobby M. Siler

DHR, Division of Social Services, CSE

91 CSE 1169

Morrison

10/12/92

Gilbert Lockhart

DHR, Division of Social Services, CSE

91 CSE 1178

Morrison

07/30/92

Isaac H. Galloway

DHR, Division of Social Services, CSE

91 CSE 1190

Reilly

06/30/92

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1618

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Russell A. Barclift

DHR. Division of Social Services, CSE

91 CSE 1207

92 CSE 0275

Reilly

06/30/92

Barnabas D. Frederick

DHR, Division of Social Services, CSE

91 CSE 1216

Nesnow

09/15/92

Herman Edward Main II

DHR, Division of Social Services, CSE

91 CSE 1225

Nesnow

07/07/92

Albert Louis Stoner III

DHR. Division of Social Services, CSE

91 CSE 1244

Gray

07/01/92

James E. Greene

DHR, Division of Social Services, CSE

91 CSE 1245

Nesnow

07/14/92

Joseph W. Harris

DHR, Division of Social Services, CSE

91 CSE 1247

Morgan

07/28/92

Celvis M, Burns

DHR, Division of Social Services, CSE

91 CSE 1256

Mann

09/01/92

Rodney Powell

DHR, Division of Social Services, CSE

91 CSE 1257

Morgan

07/29/92

Miles G. Griffm Jr.

DHR, Division of Social Services, CSE

91 CSE 1270

Gray

08/27/92

Gerald E. Anthony

DHR, Division of Social Services, CSE

91 CSE 1274

Mann

09/01/92

Floyd L. Rountree

DHR, Division of Social Services, CSE

91 CSE 1275

Morgan

07/22/92

Ruth Smith Hensley Shondales

ABC Commission

91 ABC 1280

Chess

08/05/92

William James Terry

Victims Compensation Commission

91 CPS 1302

Morrison

10/02/92

Rasoul Behboudi

y .

DHR, Division of Social Services. CSE

91 CSE 1313

Morrison

09/15/92

1619

7:15

NORTH CAROLINA REGISTER

November 2, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

John D. Gaines

DHR, Division of Social Services, CSE

91 CSE 1321

Chess

10/05/92

City- Wide Asphalt Paving, Inc.

Department of Environment, Health, & Natural Resources

91 EHR 1360

Chess

07/01/92

Alcoholic Beverage Control Commission

Tre Three, Inc., T/A Crackers,
Airport Rd., Rockingham, NC 28379

91 ABC 1372

Chess

07/07/92

Alcoholic Beverage Control Commission

Rode Enterprises, Inc., T/A Jordan Dam Mini Mart

91 ABC 1388

Gray

07/30/92

Blythe M. Bragg

University of North Carolina at Chapel Hill

91 OSP 1421

Nesnow

09/08/92

David W. Williams

DHR, Division of Social Services, CSE

91 CSE 1423

Morrison

09/10/92

Donald R. Allison

DHR, Caswell Center

91 OSP 1427

Reilly

06/30/92

Alfred Rees

Department of Environment, Health, & Natural Resources

92 EHR 0004

Reilly

09/03/92

Mrs. S.

Washington County Board of Education

92 EDC 0023

Mann

08/28/92

Rudolph Tripp

Department of Correction

92 OSP 0024

Gray

08/27/92

Gonzalo Rodriquez T/A Gonzalo's Baile Mexicano
227 S. Scales Street, Reidsville, NC 27323

Alcoholic Beverage Control Commission

92 ABC 0026

Chess

10/01/92

Lavem Fesperman

Mecklenburg County

92 OSP 0030

Chess

07/17/92

Vale B. Sims

Winston-Salem State University

92 OSP 0031

Gray

10/13/92

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1620

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Paul J. Nonkes

Halifax County Health Dept. (Jeff Dillard. Sanitarian)

92 EHR 0058

Becton

08/28/92

Carrolton of Williamston, Inc.

DHR, Division of Facility Services, Licensure Section

92 DHR 0071

Bee ton

08/19/92

Mattie S. Bryant

Department of Transportation

92 OSP0081

Reilly

10/07/92

Fred Jennings Moody Jr.

Sheriffs" Education & Training Stds. Commission

92 DOJ 0084

Chess

07/17/92

Ronnie Lament Donaldson

Sheriffs' Education & Training Standards Commission

92 DOJ 0092

Reilly

07/27/92

Vernice V. Battle

Sheriffs" Education & Training Standards Commission

92 DOJ 0093

Becton

08/28/92

Hudson's "The Acres" Rest Home

DHR. Division of Facility Services, Licensure Section

92 DHR 0100

Chess

09/04/92

Marvin Helton. Jean Helton

DHR, Division of Facility Services

92 DHR 0102

Chess

08/14/92

Leo Scott Wilson

Department of Environment, Health, & Natural Resources

92 EHR 01 12

Reilly

08/26/92

Ray Charles Ramsey D/B/A Triples Night Club

Alcoholic Beverage Control Commission

92 ABC 0116
92 ABC 0360

West

10/12/92

Peggy N. Barber

The University of North Carolina at Chapel Hill

92 OSP 0120

Reilly

07/13/92

Luther Dawson Jr.

DHR, Division of Facility Services

92 DHR 0121

Nesnow

10/09/92

Robert C. Thomas

Sheriffs' Education & Training Stds. Commission

92 DOJ 0130

Chess

10/02/92

Alcoholic Be\erage Control Commission

John Wade Levels, t/a Tasr\' Grill

92 ABC 0145

Nesnow

07/15/92

I62I

7:15

NORTH CAROLINA REGISTER

November 2, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Licensing Board for General Contractors

Wright's Construction, Inc. (Lie. No. 23065)

92 LBC 0172

Gray

07/31/92

Richard L. Banks

Pasquotank-Perquiraans-Camden-Chowan District Health

Department (PPCC) & Department of Environment,

Health, & Natural Resources

92 EHR 0175

West

08/25/92

America's Management Group, Inc. d/b/a America's
Health Care of Nashville

DHR, Division of Facility Services, Licensure Section

92 DHR 0183

West

10/06/92

Hudson's "The Acres" Rest Home

DHR, Division of Facility Services, Licensure Section

92 DHR 0186

Chess

09/04/92

Ray Bryant

Department of Labor, OSHA

92 DOL0187

Nesnow

08/07/92

Herbert Hines Jr., H & H

Alcoholic Beverage Control Commission

92 ABC 0189

Becton

07/22/92

William Stevenson

Department of Correction

92 OSP 0201

Chess

09/03/92

Frances B. Billingsley

Bd. of Trustees/Teachers & St Employees Retirement Sys

92 DST 0205

Morgan

08/18/92

Glenn E. Myers

Department of Correction

92 OSP 0217

ReiUy

09/14/92

Lawrence Neal Murrill T/A Knox, 507 1st St SW,
Hickory, NC 28602

Alcoholic Beverage Control Commission

92 ABC 0220

Chess

08/03/92

William Oats

Elizabeth City State University

92 OSP 0226

Nesnow

10/09/92

Town of Denton

Department of Environment, Health, & Natural Resources

92 EHR 0241

ReiUy

07/30/92

Alcoholic Beverage Control Commission

Byrum's of Park Road, Inc., T/A Byrum's Restaurant

92 ABC 0252

Gray

07/30/92

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1622

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Alcoholic Beverage Control Commission

Leo"s Delicatessen #2, Inc., T/A Leo's #2

92 ABC 0255

Gray

07/30/92

North Topsail Water & Sewer, Inc.

Department of Environment, Health, & Natural Resources

92 EHR 0266

Morrison

08/12/92

Raymond O. and Rita Halle, and the Town of Boone

EHR. Division of Land Resources

92 EHR 0267
92 EHR 0376

Gray

09/18/92

James L. Stubbs

Department of Correction

92 OSP 0282

Chess

10/02/92

Henn, Thomas Tart

DHR, Division of Social Services, CSE

92 CSE 0283

Nesnow

09/15/92

Virginia Devenny

The University of North Carolina at Charlotte

92 OSP 0301

Reilly

09/22/92

Henry Lane, D/B/A Emerald Health Care Acute Care Ctr

DHR, Div of Facility Services, Certificate of Need Section

and

Bowman-Richardson Health Care, Inc. D/B/A Wilkes

Senior Village

92 DHR 0308

Gray

08/28/92

Azmi Sider, Midtown Mini Mart

EHR, Division of Maternal and Child Health. WIC Section

92 EHR 0317

Nesnow

09/16/92

Gerald G. Strickland

Crime Control and Public Safety

92 CPS 0320

Chess

09/10/92

Charles Wesley McAdams

Division of Motor Vehicles

92 OSP 0332

Gray

10/13/92

Jonathan L. Fann

U.N.C. Physical Plant. Herb Paul, Louis Hemdon, Dean

Justice, Bruce Jones

92 OSP 0363

Becton

08/19/92

Douglas A. Bordeaux
Department of Correction

92 OSP 0378

Chess

07/10/92

Clifton R. Johnson

0"Berry Center, Department of Human Resources

92 OSP 0381

West

07/08/92

1623

7.-/.^

NORTH CAROLINA REGISTER

November 2, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
IWMBER

ALJ

FILED
DATE

Southeastern Machine & Tool Company, Inc.

Department of Environment, Health, & Natural Resources

92 EHR 0386

Becton

07/20/92

Louvenia Clark

Edgecombe County Department of Social Services

92 OSP 0402

Reilly

08/21/92

Raleigh F. LaRoche

Child & Family Services of Wake County

92 OSP 0409

Becton

08/24/92

Matthew R. Anderson

DHR, Division of Social Services, CSE

92 CSE 0418

Gray

10/06/92

Ell win C. Wetherington Jr.

DHR, Division of Social Services, CSE

92 CSE 0419

Morrison

09/28/92

Paul Reeves, Youth University Child Care

Child Day Care Section, Division of Facility Svcs

92 DHR 0424

West

08/21/92

Mr. & Mrs. James C. Stanton

Charlotte-Mecklenburg School System

92 EDC 0430

Nesnow

08/04/92

James Cooper Lewis

Sheriffs' Education & Training Standards Commission

92 DOJ 0461

Reilly

09/15/92

Alcoholic Beverage Control Commission

Roy William Teague, T/A Jamie's

92 ABC 0474

Reilly

10/15/92

Alcoholic Beverage Control Commission

508 Investors, Inc., t/a Johnathon's Restaurant

92 ABC 0476

Nesnow

09/24/92

Jon David Amundson

Davidson County Mental Health

92 OSP 0503

Becton

09/10/92

Northview Mobile Home Park

Department of Environment, Health, & Natural Resources

92 EHR 0507

Reilly

07/13/92

Yolanda Lynn Bethea

DHR, Division of Social Services, CSE

92 DCS 0513

Becton

08/14/92

Frank Humphrey

EHR, Division of Environmental Management

92 EHR 0514

Morrison

10/08/92

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1624

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Alice Hunt Davis

Department of Human Resources

92 OSP 0526

West

07/16/92

Jimmy F. Bailey Sr.

Department of State Treasurer, Retirement Systems Div

92 DST 0536

Morgan

08/18/92

Bramar. Inc.. t/a Spike's

Alcoholic Beverage Control Commission

92 ABC 0554

Mann

08/13/92

Grady Lockhart Jr.

DHR. Division of Social Services, CSE

92 CSE 0565

Becton

09/28/92

Ralph J. Ogburn

Private Protective Services Board

92 DOJ 0571

Nesnow

08/07/92

George M. Hagans

DHR, (Cherry Hospital)

92 OSP 0583

Morgan

09/21/92

Gilbert Todd Sr.

Public Water Supply Section

92 EHR 0586

Morrison

08/06/92

Candance Y. Johnson

Division of Motor Vehicles

92 DOT 0589

Becton

08/24/92

John W. Surles

N.C. Crime Victims Compensation Commission

92 CPS 0595

Reilly

07/13/92

Pamela Jean Gass

DHR, Division of Social Services, CSE

92 DCS 0623

Morrison

08/14/92

J.W. Reed

v.
Department of Correction

92 OSP 0638

Morrison

08/11/92

Carson Davis

Department of Correction

92 OSP 0650

Reilly

08/10/92

Luther Hall Clontz

Western Carolina Center (NC of Human Resources)

92 OSP 0652

Becton

09/10/92

Private Protective Services Board

Mark Andrew Perry

92 DOJ 0662

Becton

09/10/92

1625

7:15

NORTH CAROLINA REGISTER

November 2, 1992

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Stauffer Information Systems

Department of Community Colleges and the N.C.

Department of Administration

and

The University of Southern California

92 DOA 0666

West

07/08/92

Dortheia B. Marley

Department of Correction

92 OSP 0667

West

09/28/92

Nancy J. Tice

Administrative Off of the Courts, Guardian Ad Litem Svcs

92 OSP 0674

Morrison

08/11/92

L. Stan Bailey

Chancellor Moran and UNC-Greensboro

92 OSP 0679

West

07/10/92

Arnold McCloud T/A Club Castle

Alcoholic Beverage Control Commission

92 ABC 0681

Morrison

07/25/92

Joyce Faircloth, T/A Showcase Lounge

Alcoholic Beverage Control Commission

92 ABC 0713

Morrison

07/25/92

James B. Price

Department of Transportation

92 OSP 0725

Mann

09/02/92

Edmonia Lang

Carteret County Board of Education

92 OSP 0736

Mann

08/28/92

Larry Bruce High

Alarms Systems Licensing Board

92 DOJ 0755
92 DOJ 0785

Nesnow

08/25/92

Wyoming Gilliam

DHR, Division of Social Services, CSE

92 CSE 0772

Gray

09/29/92

Timothy Wylie

Department of State Treasurer, Retirement Systems Div

92 DST 0793

Morrison

09/29/92

Rosie W. Harrell

Administrative Office of the Courts

92 OSP 0846

West

09/17/92

Robert Aiken

Department of Correction

92 OSP 0872

Gray

09/25/92

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1626

CONTESTED CASE DECISIONS

CASE NAME

CASE
NUMBER

ALJ

FILED
DATE

Daniel N. Jones

N.C. Victims Compensation Commission

92 CPS 0879

Chess

08/28/92

Paul Hunter

Dorothea Dix Hospital

92 OSP 0878

Chess

09/29/92

David V. Cates

Alarm Systems Licensing Board

92 DOJ 0892

Becton

10/05/92

1627

7:15

NORTH CAROLINA REGISTER

November 2, 1992

CONTESTED CASE DECISIONS

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS
COUNTY OF LENOIR 91 EHR 0446

HARVEY FERTILIZER AND GAS COMPANY, )

Petitioner, )

)

) FINAL DECISION

)

N. C. DEPARTMENT OF ENVIRONMENT, )

HEALTH AND NATURAL RESOURCES, )

DIVISION OF ENVIRONMENTAL MANAGEMENT )

Respondent. )

This matter comes before the undersigned administrative law judge upon the filing of Respondent's
Motion to Dismiss Pursuant to G.S. lA-1, R. 12(b) (1), or In the Alternative, R. 12(b) (6) on July 15, 1991.
The Petitioner filed its Response to Respondent's Motion to Dismiss on July 29, 1991. After each of the
parties filed briefs to support their respective positions, the parties made oral presentations concerning the
motion on September 19, 1991.

In its motion to dismiss, the Respondent contends that the Office of Administrative Hearings does not
have the subject matter jurisdiction over this matter in light of Batten y^ N.C. Dept. of Correction , 326 N.C.
338, 389 S.E.2d 35 (1990) because the Petitioner does not have a substantive right to a hearing on its claim.
Alternatively, the Respondent claims that the Petitioner has failed to state a proper claim for relief based upon
the doctrine of sovereign immunity. The Petitioner counters, in its response to the motion to dismiss, that
the Batten case is inapplicable here and that the Office of Administrative Hearings has jurisdiction over this
action. It further asserts that the Respondent is not shielded by the doctrine of sovereign immunity from a
claim against it by the Petitioner.

FACTS

The record in this case indicates that the facts which gave rise to this dispute are uncontro verted. On
February 7, 1991 at 5:00 PM, the Petitioner's bulk petroleum terminal in Kinston, North Carolina, where
gasoline and other petroleum products were stored in above-ground tanks, was closed and secured by its
employees. However, at approximately 7:30 PM, valves of the Petitioner's tanks were opened, causing
gasoline to pour onto the ground. By the time that the flow of gasoline had been stopped, some 3, (XX) gallons
of the substance had poured from the containers.

Area emergency units responded to this gasoline spill, along with Representatives of the Petitioner
and the Respondent. The Petitioner's officials stated that the gasoline spill was caused by an anonymous
person scaling its perimeter fence, turning on the previously-disengaged electrical switches, pulling down the
filler arms to ground level and opening the gasoline container valves. However, an official of the
Respondent's regional office of its Division of Environmental Management placed responsibility for the
gasoline spill upon the Petitioner, regardless of the cause of the release, and further held the Petitioner
accountable for cleaning up the spill. The Respondent's official also instructed the Petitioner that the
Respondent would issue a Notice of Violation to the Petitioner, assess substantial penalties against it and
possibly institute criminal proceedings against it if the Petitioner refused to take immediate responsibility for
the removal of the spilled gasoline. Some of the spillage flowed into Adkin's Branch and towards the Neuse
River.

The Petitioner's representatives informed the Respondent's official that the Petitioner would undertake
to remove the gasoline spill under protest and would reserve the right to seek reimbursement from the State
of North Carolina for the Petitioner's costs of removal. The Petitioner immediately retained the services of

7:15 NORTH CAROLINA REGISTER November 2, 1992 1628

CONTESTED CASE DECISIONS

a business v\hich handled the containment and removal of the gasoline spill. This business has billed the
petitioner in the amount of S3 1 ,500.00 for the costs of containment and removal of the spill. In addition, the
Petitioner has incurred costs to clean up this gasoline spill at the direction of the Respondent in the amounts
of S8.302.39 for the cit}' of Kinston's costs in responding to the spill and Si. 891. 55 for supervision of the
containment and removal. Other expenses of the Petitioner in this regard include the cost of its employees'
work and attorneys' fees.

The Petitioner applied to the Respondent for reimbursement of the Petitioner's costs to handle the
gasoline spill. The Petitioner states that the total of these costs exceeds $41,000.00. The Respondent has
denied the Petitioner's claim for any reimbursement. TTie Petitioner filed a Petition for a Contested Case
Hearing in the North Carolina Office of Administrative Hearings, appealing the Respondent's denial of the
Petitioner's reimbursement claim.

CONCLUSIONS OF LAW

The Petitioner seeks the reimbursement of its costs from the Respondent for the containment and
removal of the gasoline spill under the provisions of North Carolina General Statutes Section 143-215.87.
which establish the Oil or Other Hazardous Substances Pollution Protection Fund (hereafter referred to as
"the Fund"). This statute states, in pertinent part:

"There is hereby established under the control and direction of the Department [of
Environment. Health and Natural Resources] an Oil or Other Hazardous Substances Pollution
Protection Fund. . .The moneys shall be used to defray the expenses of any project or program
for the containment, collection, disposal or remo\'al of oil or other hazardous substances
discharged to the land or waters of this State..."

N.C.G.S. §143-215.88 addresses the matter of payments from the Fund to State agencies or State-designated
local agencies and states, again in pertinent part:

"Upon the completion of an\' oil or other hazardous substances removal or restoration project
or activity conducted pursuant to the provisions of the Part [2 of Article 21 A of the North
Carolina General Statutes], each agency of the State or any State-designated local agency that
has participated by furnishing personnel, equipment or material shall deliver to the
Department [of Environment. Health and Natural Resources] a record of the expenses
incurred b\ the agency. The amount of incurred expenses shall be disbursed by the Secretary
[of En\ ironment. Health and Natural Resources] to each such agency from the Oil or Other
Hazardous Substances Pollution Protection Fund..."

There is no statutory authority in Article 21 A of the North Carolina General Statutes, where the laws
governing the administration of the Fund are found, which creates or recognizes a party's right to appeal the
Respondent's denial of the party's request for disbursement of moneys from the Fund for expenses which were
incurred by the party for containment, collection, disposal or removal of gasoline. In its petition initiating
this contested case, the Petitioner alleges that the Respondent did not have the authority to order the Petitioner
to clean up the gasoline spill at issue and subsequently to refuse the Petitioner's request to reimburse these
spillage-related expenses from the Fund. In the absence of a statuton,' provision which creates or recognizes
a right to initiate such an action, the Petitioner argues in its brief that Title 15A. Chapter IB. Section .0202
of the North Carolina .Administrative Code authorizes this type of proceeding. This administrative rule states:

"Contested case hearings are available as provided in G.S. 150B. and petitions for contested
case hearings shall be filed in accordance with the provisions of that Chapter. "

In Batten v. N.C. Dept. of Correction . 326 N.C. 338. 389 S.E.2d 35 (1990). the Supreme Court of
-North Carolina provided a thoughtful analysis of the relationship between a substantive body of law and
Chapter 1508 of the North Carolina General Statutes in determining the existence of a party's substantive right
to a contested case hearing in the Office of Administrative Hearings (OAH). In Batten , the plaintiff

1629 7:15 NORTH CAROLINA REGISTER November 2, 1992

CONTESTED CASE DECISIONS

challenged the defendant's downward reallocation of the plaintiffs job position under a reorganization of the
defendant's personnel. In addressing the issue concerning the Office of Administrative Hearings' subject
matter jurisdiction over the plaintiffs action, the Supreme Court began its analysis by observing;

"TTie jurisdiction of the OAH over the appeals of state employee grievances derives not from
Chapter 150B, but from Chapter 126. The administrative hearing provisions of Article 3,
Chapter 150B, do not establish the right of a person 'aggrieved' by agency action to OAH
review of that action, but only describe the procedures for such review." (326 N.C. at 342-
343, 389 S.E.2d at 38)

The high court next observed that the Office of Administrative Hearings' jurisdiction over appeals of state
employees grievances is expressly granted in the State Personnel Act, which states in N.C.G.S. 126-37(a):

"Appeals involving a disciplinary action, alleged discrimination, and any other contested case
arising under this Chapter [126 of the North Carolina General Statutes] shall be conducted
in the Office of Administrative Hearings as provided in Article 3 of Chapter 150B [of the
North Carolina General Statutes]..."

After recognizing "that Chapter 1508 merely provides procedural guidelines to be followed in order to satisfy
substantive rights established under Chapter 126" (326 N.C. at 344, 389 S.E.2d at 39), the Supreme Court
held that the Office of Administrative Hearings had jurisdiction to determine the plaintiffs appeal because the
plaintiffs pursuit of all informal procedures mandated by the State Personnel Act and by the North Carolina
Administrative Code for the resolution of his grievance had caused his dispute with the defendant to become
a "contested case" for purposes of review under Chapter 1508.

An application of the Supreme Court's methodical jurisdictional analysis in Batten v^ N.C. Dept. of
Correction, supra to the present case illustrates that the Office of Administrative Hearings does not have
subject matter jurisdiction over the instant matter. In Batten , the substantive provisions of the State Personnel
Act granted the plaintiff an express right to appeal to the Office of Administrative Hearings which was
embodied in N.C.G.S. 126-37(a); however, in the present action, the substantive provisions of the Oil
Pollution and Hazardous Substances Control Act do not create or recognize any right of the Petitioner to bring
an action in the Office of Administrative Hearings to appeal the Respondent's denial of the Petitioner's request
for reimbursement of its gasoline spillage clean-up expenses from the Fund. While the Petitioner cites 15A
NCAC 18.0202 as sufficient legal authority to place its dispute with the Respondent within the subject matter
jurisdiction of the Office of Administrative Hearings in lieu of express statutory authority, the Petitioner's
reliance on this administrative rule is misplaced. 15A NCAC 13.0202 does not grant the Petitioner a
substantive legal right to appeal the Respondent's denial of this request for a disbursement from the Fund, but
merely codifies the Respondent's recognition that contested case hearings in which it is involved are governed
by Chapter 1508 of the North Carolina General Statutes. In light of the state's highest court's observation
in Batten that Chapter 1508 provided only procedural guidelines, and that any jurisdiction of the Office of
Administrative Hearings and any substantive rights would have to be derived from Chapter 126, a consistent
analysis in the case sub judice would require that Article 21 A of Chapter 143 of the North Carolina General
Statutes provide the substantive legal rights of the Petitioner which are necessary to invoke the jurisdiction
of the Office of Administrative Hearings. Since the Oil Pollution and Hazardous Substances Control Act does
not create or recognize a substantive right of the Petitioner to appeal the Respondent's denial of the
Petitioner's request for disbursement of moneys from the Fund for the Petitioner's costs of and removal of
the gasoline spill, with I5A NCAC 18.0202 merely serving as a reference to Chapter 1508 which operates
only as a procedural mechanism in conjunction with substantive law under the principles of Batten v^ N.C.
Dept. of Correction, supra to grant subject matter jurisdiction to the Office of Administrative Hearings in a
contested case, the Office of Administrative Hearings therefore does not have subject matter jurisdiction to
entertain the Petitioner's appeal concerning the Respondent's denial of the Petitioner's request for the
disbursement of moneys from the Oil or Other Hazardous Substances Pollution Protection Fund.

The cases upon which the Petitioner principally relies in its brief are readily distinguishable. In
Orange County v. North Carolina Department of Transportation . 46 N.C. App. 350, 265 S.E.2d 890 (1980)

7:15 NORTH CAROLINA REGISTER November 2, 1992 1630

CONTESTED CASE DECISIONS

a set of regulations which included a provision for an appeal of an agency environmental determination was
promulgated pursuant to the North Carolina Environmental Protection Act (NCEPA). The North Carolina
Court of Appeals ruled that "the NCEPA and the regulations effectively broaden the definition of 'contested
case' and expand the scope of procedural remedies available under the Administrative Procedure Act..."
(EMPHASIS ADDED) [46 N.C. App. at 375, 265 S.E.2d at 907] In the present case, however, there is no
procedural statutory provision or regulation enacted pursuant to the Oil Pollution and Hazardous Substances
Control Act which operates, together with the Act, to qualify the Petitioner's action as a contested case within
the subject matter jurisdiction of the Office of Administrative Hearings. The procedural regulation 15A
NCAC IB. 0202 was not enacted pursuant to, and does not operate in conjunction with, the Oil Pollution and
Hazardous Substances Control Act to confer subject matter jurisdiction upon the Office of Administrative
Hearings in this matter. The Petitioner also cites Metropolitan Sewerage District of Buncombe County. North
Carolina v. North Carolina Wildlife Resources Commission , 100 N.C. App. 171, 394 S.E.2d 668 (1990)
where the North Carolina Court of Appeals identified the plaintiffs dispute with the defendant as a contested
case over which the Office of Administrative Hearings had jurisdiction. The appellate court determined that
the defendant's rejection of the plaintiffs site study constituted a dispute which ultimately became a contested
case. In the instant case, however, the dispute between the Petitioner and the Respondent does not qualify
as a contested case within the subject matter jurisdiction of the Office of Administrative Hearings because
there is no recognized right to appeal here.

Due to the undersigned's dispositive consideration of the Respondent's argument in its dismissal
motion documents concerning the lack of subject matter jurisdiction under the doctrine of Batten v^ N.C. Dept
of Correction, supra , it is unnecessary to address the Respondent's remaining arguments concerning the lack
of subject matter jurisdiction based upon the doctrine of sovereign immunity.

FINAL DECISION

This contested case is DISMISSED for lack of jurisdiction under N.C.G.S. 150B-36(c).

NOTICE

In order to appeal a Final Decision, the person seeking review must file a Petition in the Superior
Court of Wake County or in the superior court of the county where the person resides. The Petition for
Judicial Review must be filed within thirty (30) days after the person is served with a copy of the Final
Decision. G.S. 150B-46 describes the contents of the Petition and requires service of the Petition on all
parties.

This is the 1st day of October, 1992.

Michael Rivers Morgan
Administrative Law Judge

1631 7:15 NORTH CAROLINA REGISTER November 2, 1992

CONTESTED CASE DECISIONS

STATE OF NORTH CAROLINA
COUNTY OF YANCEY

ESf THE OFFICE OF
ADMINISTRATIVE HEARINGS

92 DO J 0130

ROBERT C. THOMAS.

Petitioner,

NORTH CAROLINA SHERIFFS' EDUCATION
AND TRAINING STANDARDS COMMISSION,
Respondent.

PROPOSAL FOR DECISION

BACKGROUND

This matter was heard in Burnsville, Yancey County, North Carolina on June 30, 1992, before
Administrative Law Judge Sammie Chess, Jr., pursuant to North Carolina General Statutes section
150B(40)(e). On February 11, 1992, Petitioner, Robert C. Thomas, Chief Deputy Sheriff for Yancey County,
petitioned the Office of Administrative Hearings for a contested case hearing to appeal the decision of the
Director of the North Carolina Sheriffs' Education and Training Standards Commission to summarily his
Certification as a Deputy Sheriff.

APPEARANCES

For Petitioner:

J. Todd Bailey
BAILEY and BAILEY
Attorney at Law
Post Office Box 217
Burnsville, North Carolina

For Respondent:

John J. Aldridge, III
Associate Attorney General
N. C. Department of Justice
F. O. Box 629

Raleigh, North Carolina

ISSUES

Whether Respondent acted erroneously, failed to use proper procedure, acted arbitrarily and
capriciously or failed to act as required by law leading up to, or during Petitioner's summary suspension from
his position as Chief Deputy Sheriff for Yancey County?

STATUTES AND RULES INVOLVED

N.C.G.S. Chapter 17E

N.C.G.S. 150B-3(c)

12 N.C.A.C. lOB .0503(a)

12 N.C.A.C. lOB .0505(a)(20)

12 N.C.A.C. lOB .0505(b)

SUMMARY OF DECISION

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1632

CONTESTED CASE DECISIONS

The undersigned Administrative Law Judge finds that the Director of the North Carolina Sheriffs"
Education and Training Standards Commission acted under a misinterpretation of the law when she failed to
consider Petitioner's prior extensive training and experience in considering whether to authorize a waiver of
the Basic Law Enforcement Training Course, and acted arbitrarily and capriciously in summarily suspending
Petitioner from his duties as Chief Deputy Sheriff without a hearing and without and findings of fact to
support summary suspension.

The parties entered the following:

STIPULATIONS

1. Both parties received proper Notice of Hearing as required by law.

2. To the extent relevant, official notice may be taken of provisions of the North Carolina
Administrative Code, including 12 N.C.A.C. lOB .0503(a), 12 N.C.A.C. lOB .0505(a)(20), and 12 N.C.A.C.
lOB .0505(b).

3. That the letters identified as ExJiibits (8) through (14) in the Prehearing Order were received
by the respective addressees.

4. That on February 4. 1992, Petitioner requested an Administrative Hearing in this matter.

EXHIBITS
The following exhibits were admitted into evidence:
L Respondent's Exhibits 1-19.

FINDINGS OF FACT

1 . Both parties are properly before the Office of Administrative Hearings and the Administrative
Law Judge, in that jurisdiction and venue are proper, and both parties received proper notice of hearing
required pursuant to North Carolina General Statute section 150B-23.

2. That the North Carolina Sheriffs' Education and Training Standards Commission is granted
the authority under Chapter 17E of the North Carolina Statutes and Title 12 N.C.A.C Chapter 10,
Subchapter lOB, to certify justice officers as either deputy sheriffs or jailers and to deny, revoke or suspend
such certification.

3. On December 3, 1990, Petitioner was appointed Chief Deputy to the Sheriff of Yancey
County by appointment of the duly elected Sheriff which continues to this date.

4. Petitioner's personal historv' and educational and professional qualifications are as set forth
in Petitioner's exhibits 2 and 16.

5. Prior to his appointment as Chief Deputy Sheriff, Petitioner's last service in a sworn-in law
enforcement position ended January 1. 1987, when he retired following 17 years and 5 months service with
the State Bureau of In\estigation.

6. On January 25, 1991, the Commission found and certified that Petitioner "appears to meet
the MINIMUM STANDARD REQUIREMENTS for appointment as a LAW ENFORCEMENT OFFICER
OF THE STATE OF NORTH CAROLINA OVER ANY OF ITS POLITICAL SUBDIVISIONS" and through
its Director issued Petitioner Probationary Certification as a Deputy Sheriff through December 3, 1991.

1633 7:15 NORTH CAROLINA REGISTER November 2, 1992

CONTESTED CASE DECISIONS

7. Under letter of January 25, 1991, the Commission Director advised Petitioner that an
evaluation of his training and experience had been conducted and that by reason of the provisions of 12
N.C.A.C. lOB .0505(a)(4), Petitioner was required to complete "a Commission-Accredited Basic Course in
its entirety and successfully pass the State Comprehensive Examination" within the probationary period
prescribed in 12 N.C.A.C. lOB .0503(a). (Exhibit 8 and testimony of Joan G. Neuner)

8. Under letter of May 13, 1991, Petitioner wrote the Division Director requesting a waiver of
training and enclosed documentary evidence of his training in supplement to the materials submitted with his
initial application (Exhibit 9) The documentary evidence furnished to the Commission was the same
documents constituting Exhibit 16.

9. Under letter of May 21, 1991, the Commission Director advised Petitioner that the
"Commission does not have the authority to honor your request for a Waiver of its Basic Training
Requirements." (Exhibit 10)

10. In the May 21, 1991 letter the Commission Director advised Petitioner that the provisions
of 12 N.C.A.C. lOB .0505(a)(20) also prohibited his eligibility for a training waiver. (Exhibit 10 and
Testimony of Joan G. Neuner)

11. Petitioner has not participated in the Basic Law Enforcement Training desired by the
Commission.

12. Under letter of December 3, 1991, the Commission's Director wrote Petitioner that he was
no longer a Certified Deputy Sheriff, that his exercise of the authority of a Deputy Sheriff was " a danger to
the public health, safety, and welfare of the citizens of this State," and advised that his failure to quit the
duties of a Deputy Sheriff would be a violation of the law. (Exhibit 12)

13. Petitioner received no notice or opportunity for hearing prior to the agency action on
December 3, 1991. (Testimony of the Petitioner and Joan G. Neuner)

14. On February 19, 1992, after the fact of his suspension. Petitioner appeared at a meeting of
the Commission which denied a motion to waive training and adopted a motion to require that Petitioner
complete training. The vote on both motions was divided. (Testimony of Joan G. Neuner)

15. Petitioner received the December 3, 1991 letter of suspension on December 9, 1991 , and filed
petitions for Hearing with both the Office of Administrative Hearings and the Commission. (See Petitions)

16. Upon Application of the Commission, the undersigned Administrative Law Judge was
assigned to preside in this matter.

17. Witnesses familiar with the Petitioner's prior training and experience testified that "required
attendance in the Basic Law Enforcement Training Course would be impractical" (Testimony of Sheriff
Kermit Banks, Ray Garland, and Petitioner) and the uncontradicted evidence in that regard is accepted and
approved a Finding of Fact.

18. Kermit Banks, the incumbent Sheriff of Yancey County who appointed Petitioner, and Ray
Garland, retired Assistant Director of the State Bureau of Investigation, with 38 years of service, both testified
to Petitioner's high qualifications to serve as Chief Deputy Sheriff and opined that Basic Law Enforcement
Training would be a waste of time for Petitioner. In view of the witnesses' credibility and the prior extensive
training and experience of Petitioner, the undersigned finds that Petitioner has completed training equivalent
to the Commission's Basic Law Enforcement Training Course for Deputy Sheriffs and that his experience and
training evince ability beyond Basic Law Enforcement Training.

7:15 NORTH CAROLINA REGISTER November 2, 1992 1634

CONTESTED CASE DECISIONS

19. That Commission's Director did not advise Petitioner that a Waiver of Training could be
approved by the Commission upon Petition of the Sheriff under North Carolina General Statutes 17E-7, or
under the provisions of 12 N.C.A.C. lOB .0504. (Testimony of Joan G. Neuner)

20. The Commission's Director did not advise Petitioner of her authority to waive training under
12 N.C.A.C. lOB .0505(b) and no consideration was given to Petitioner's eligibility for a waiver thereunder.
(Testimony of Joan G. Neuner)

21. The sole basis for the statement that Petitioner's continued service as Chief Deputy Sheriff
was a "danger to the public health, safety, and welfare of the citizens of this State" contained in the December
3, 1991 letter of summary suspension is the Commission's determination in 12 N.C.A.C. 12B .0206 that
failure to comply with regulatory requirements affect[s] the public health, safety, or welfare. (Testimony of
Joan G. Neuner)

Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1. The North Carolina Sheriffs' Education and Training Standards Commission is an agency
established by the Legislature pursuant to Chapter 17E of the North Carolina General Statutes.

2. The summary suspension of Petitioner's certification as a Chief Deputy Sheriff and the refusal
to approve a Waiver of the Basic Law Enforcement Training Course was arbitrary and capricious and the
Commission Director's indication to Petitioner that there existed no authority for a training waiver was based
upon mistake or misrepresentation of the applicable statutes and regulations for the reasons that:

(a) Despite the rules set forth in 12 N.C.A.C. lOB .0505(a) for use of the
Division Staff in evaluating a Deputy's eligibility for a waiver of training,
the Commission has authority to waive training under 12 N.C.A.C. lOB
.0504 and the Commission's authority is not bound by the guidelines for the
Division Staff.

(b) The Commission's Director has authority to exercise discretion in
determining the amount of training required for a Deputy Sheriff during his
probationary period "where an evaluation of the applicant's prior training
and experience determine that required attendance in the entire Basic Law
Enforcement Training Course would be impractical."

3. The suspension and refusal to waive training was arbitrary and capricious for the reason that
the Commission Director failed and refused to exercise and misrepresented the existence of her authority under
12 N.C.A.C. lOB .0505(b).

4. Respondent's failure to independently and objectively consider Petitioner's extensive prior
training and experience in considering whether to authorize waiver of some or all of the Basic Law
Enforcement Training Course was arbitrary and capricious.

5. Because the decision to revoke Petitioner's Certification as a Deputy Sheriff was adjudicatory
and therein affected his rights, and because there is no evidence to support a finding that the public health,
safety, or welfare required emergency action, the agency action of December 3. 1991. in this case, without
notice to Petitioner, and opportunity for Hearing prior to such agency action, was in violation of the law.
Scroggs \\ North Carolina Criminal Justice Standards Commission . 101 N.C. App. 699 (1991).

1635 7:15 NORTH CAROLINA REGISTER November 2, 1992

CONTESTED CASE DECISIONS

Based on the foregoing Findings of Facts, Conclusions of Law, and a preponderance of the substantial
evidence in the record, the Administrative Law Judge makes the following:

PROPOSALS FOR DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is proposed that the North
Carolina Sheriffs' Education and Training Standards Commission withdraw its action set forth in the
December 3, 1991 suspension letter in that said action was erroneous, arbitrary and capricious and contrary
to law, Scroggs \\ North Carolina Criminal Justice Standards Commission 10 N.C. App. 699 (1991), or In
the Alternative, that the Commission reverse the summary suspension of Petitioner's Certification and issue
a waiver of any further training of Petitioner.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General
Statutes 150B-36(b).

NOTICE

The agency making the final decision in this contested case is required to give each party an
opportunity to file exceptions to this proposal for decision, to submit proposed findings of fact and to present
oral and written arguments to the agency. G.S. 150B-40(e).

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings .

The agency that will make the final decision in this contested case is the North Carolina Sheriffs'
Education and Training Standards Commission.

This is the 2nd day of October, 1992.

Sammie Chess, Jr.
Administrative Law Judge

7:15 NORTH CAROLINA REGISTER November 2, 1992 1636

NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM

1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these,
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major
department in the North Carolina executive branch of government has been assigned a title number.
Titles are further broken down into chapters which shall be numerical in order. The other two,
subchapters and sections are optional subdivisions to be used by agencies when appropriate.

TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE
TITLE DEPARTMENT LICENSING BOARDS CHAPTER

Architecture 2

Auctioneers 4

Barber Examiners 6

Certified Public Accountant Examiners 8

Chiropractic Examiners 10

General Contractors 12

Cosmetic Art Examiners 14

Dental Examiners 16

Dietetics/Nutrition 17

Electrical Contractors 18

Electrolysis 19

Foresters 20

Geologists 21

Hearing Aid Dealers and Fitters 22

Landscape Architects 26

Landscape Contractors 28

Marital and Family Therapy 31

Medical Examiners 32

Midwifery Joint Committee 33

Mortuary Science 34

Nursing 36

Nursing Home Administrators 37

Occupational Therapists 38
Opticians - 40

Optometry 42

Osteopathic Examination & Reg. (Repealed) 44

Pharmacy 46

Physical Therapy Examiners 48
Plumbing, Heating & Fire Sprinkler Contractors 50

Podiatry Examiners 52

Practicing Counselors 53

Practicing Psychologists 54

Professional Engineers & Land Surveyors 56

Real Estate Commission 58

Refrigeration Examiners 60

Sanitarian Examiners 62

Social Work 63
Speech & Language Pathologists & Audiologists 64

Veterinary Medical Board 66

Note: Title 21 contains the chapters of the various occupational licensing boards.

Administration

Agriculture

Auditor

Economic & Community Development

Correction

Council of State

Cultural Resources

Elections

Governor

Human Resources

Insurance

Justice

Labor

14A

Crime Control & Public Safety

15A

Environment, Health, and Natural

Resources

Public Education

Revenue

Secretary of State

19A

Transportation

Treasurer

*21

Occupational Licensing Boards

Administrative Procedures

Community Colleges

Independent Agencies

State Personnel

Administrative Hearings

1637

7:15

NORTH CAROLINA REGISTER

November 2, 1992

CUMULATIVE INDEX

(April 1992 - March 1993)

Pages

Issue

1 - 105 .'. ..... ..y 1 - April

106 - 173 2 - April

174 - 331 3 - May

332 - 400 4 - May

401 - 490 5 - June

491 - 625 6 - June

626 - 790 7 - July

791 - 902 8 - July

903 - 965 9 - August

966 - 1086 10 - August

1087 - 1154 11 - September

1155 - 1253 12 - September

1254 - 1350 13 - October

1351 - 1463 14 - October

1464 - 1640 15 - November

ADMINISTRATION

Auxiliary Services, 4 .-.

Motor Fleet Management Division, 794 • .

AGRICULTURE

Gasoline and Oil Inspection Board, 336

Pesticide Board, 1276

Plant Industry, 904

Structural Pest Control Committee, 332

Veterinary Division, 342

COMMUNITY COLLEGES

Community Colleges, 1535
General Provisions, 1531
Miscellaneous Programs, 1598

CULTURAL RESOURCES

U.S.S. Battleship Commission, 911

ECONOMIC AND COMMUNITY DEVELOPMENT

Banking Commission, 629, 1467
Community Assistance, 909, 968
Departmental Rules, 801

ENVIRONMEIVT, HEALTH, AND NATURAL RESOURCES

Adult Health, 1199

Coastal Management, 211, 655. 1098, 1507

Departmental Rules, 826

Environmental Health, 223

Environmental Management, 190, 416. 500, 644, 830, 1013, 1487

Governor's Waste Management Board, 564, 920, 1197

Health: Epidemiology, 140, 1212

7:15

NORTH CAROLINA REGISTER

November 2, 1992

1638

CUMULATIVE INDEX

Health: Personal Health, 1217

Health Services, 52, 659, 1174

Marine Fisheries, 530

NPDES Permits Notices, 1, 107

Radiation Protection, 136, 1520

Sedimentation Control, 920

Vital Records. 565

Wildlife Resources Commission, 28, 133, 408, 449, 551, 921, 1299, 1414

Wildlife Resources Commission Proclamation, 176

FINAL DECISION LETTERS

Voting Rjghts Act, 106, 174, 406, 493, 628, 793, 966, 1090, 1275, 1465

GENERAL STATUTES

Chapter 150B. 1254

GOVERNOR/LT. GOVERNOR

Executive Orders, 401, 491, 626, 791, 903, 1087, 1155, 1351, 1464

HUMAN RESOURCES

Aging, Division of, 121, 346

Day Care Rules, 123

Economic Opportunity, 5

Facility Services, 111, 177, 496, 634, 980, 1352

Medical Assistance, 4, 415, 496, 816, 989, 1156, 1295, 1391

Mental Health, Developmental Disabilities and Substance Abuse Services, 111, 297, 409, 809, 1092, 1276

Social Services Commission, 183, 911, 1471

INDEPENDENT AGENCIES

Housing Finance Agency, 450, 576, 928, 1219

INSURANCE

Actuarial Services Division, 1411

Agent Services Division, 1410

Consumer Services Division, 125, 1157

Departmental Rules. 7. 1095, 1405

Engineering and Building Codes, 19, 643

Financial Evaluation Division, 1162

Fire and Rescue Services Division, 17, 1406

Hearings Division. 124, 1096

Life and Health Division, 22, 347. 1167

Property and Casualty Division. 20

Seniors" Health Insurance Information Program, 132

JUSTICE

Alarm Systems Licensing Board, 27, 189, 643, 919, 1414, 1486

Criminal Information, 1097

General Statutes Commission, 353

Private Protective Services, 918

Sheriffs Education and Training. 990

State Bureau of Investigation, 188, 499, 1413

LICENSING BOARDS

Architecture, 1111

Certified Public Accountant Examiners, 355

1639 7:15 NORTH CAROLINA REGISTER November 2, 1992

CUMULATIVE INDEX

Chiropractic Examiners, 1416

Cosmetic Art Examiners, 360, 922

Dietetics/Nutrition, 923

Electrolysis Examiners. 69, 700

Medical Examiners, 1304, 1417

Nursing, Board of, 232, 700, 1528

Pharmacy, Board of, 1418

Professional Engineers and Land Surveyors, 566

Speech and Language and Pathologists and Audiologists, 705

LIST OF RULES CODIFIED

List of Rules Codified, 72, 362, 452, 584

PUBLIC EDUCATION

Departmental Rules, I 108
Elementary and Secondary, 852, 1 108

REVENUE

License and Excise Tax, 712
Motor Fuels Tax, 361

STATE PERSONNEL

Office of State Personnel, 237, 705, 1113, 1419

TAX REVIEW BOARD

Orders of Tax Review, 494

TRANSPORTATION

Highways, Division of, 228, 856, 1062, 1110
Motor Vehicles, Division of, 68, 142

7:15 NORTH CAROLINA REGISTER November 2, 1992 1640

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